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Monthly Archives: March 2017

Is It Time to Examine the Concept of Originality in Musical Works?

Emma Steel, Original Sin: Reconciling Originality in Copyright with Music as an Evolutionary Art Form, 37 Eur. Intell. Prop. Rev. 66 (2015).

Copyright often makes little sense, particularly when you explain it to people who are not familiar with its concepts. Jessica Litman expresses this problem well in her book Digital Copyright by stating that people “find it very hard to believe that there’s really a law out there that says the stuff the copyright law says.” Anyone who has had to talk to members of the public about copyright will have similar experiences.

One area of copyright that has been receiving quite a lot of coverage recently is originality of music, especially in various high profile cases in which famous artists have been sued for copyright infringement. The most visible perhaps is the recent case of Williams v. Bridgeport Music, Inc, in which the estate of Marvin Gaye sued Robin Thicke and Pharrell Williams for copyright infringement in the hit song “Blurred Lines,” alleging that the music was too similar to that of Gaye’s famous “Got to Give It Up.” The jury decided in favour of Gaye, and the estate was awarded $7.4 million in damages. That ruling is on appeal at the time of writing, and it has proven controversial amongst copyright experts and music industry insiders. Some have argued that the ruling could have a negative effect on musicians trying to explore music from previous eras, incorporating sounds and styles from famous artists. Similarly, over 200 musicians have supported the ongoing appeal, arguing that the decision could have a chilling effect on creativity.

In Original Sin: Reconciling Originality in Copyright with Music as an Evolutionary Art Form, Emma Steel does not address the case of Williams v. Bridgeport Music as such, but she explores the question of originality in music in an interesting and noteworthy manner that is relevant to that litigation. Steel first describes the evolution of music’s component elements, paying special attention to the evolution of rhythm and melody as the basic building blocks of musical creations. Rhythm takes the form of tempo, metre, and rhythmic pattern. These provide a repetition of timing that tends to be common in various styles and genres. For example, the 4/4 metre is the most popular timing, while 3/4 is found in waltzes and country music. Melody, on the other hand, is where most of the originality in music is manifest, and it is “the relationship between musical tones of various pitch and duration.” Steel comments that in Western musical traditions melodies tend to be repetitive in nature and shared across music genres.

This is important because when one breaks down music to its most basic components, it becomes clear that originality is more limited than might be supposed. Steel comments that “the use of prescribed scales, keys and structures to fashion melodic lines gave rise to a listener’s dependency on Western tonality in order to make auditory sense of the sounds.” The result is a set of rhythms and melodies that can be often found across several songs in a genre or time, as audiences become used to specific combinations that are in fashion at the time. Steel argues that cultural experiences affect both the creative process and the consumption of music, and universal themes emerge during certain periods.

Given the extensive similarity of musical composition across an era, the originality requirement in copyright law becomes difficult to satisfy in musical works. Copyright protects the expression of an idea, not that idea. The problem is that many common elements in musical creation could be considered ideas if they are widely shared across compositions of a similar genre. To the untrained ear, all music of one genre sounds much the same, so it becomes the task of the trier of fact to try to draw the line of where a work has passed from using the ideas of a genre into the infringement of the expression of the ideas. Blurred lines, if you may. But drawing these lines is not the only challenge because judges and juries must also determine if the copying has been substantial, and therefore worthy of being declared copyright infringement.

Steel analyses several famous music cases to try to discern whether the application of the originality test was properly applied in music. Of particular interest is Francis Day & Hunter v. Bron, where the Court of Appeal of England and Wales ruled against infringement as to two compositions that appeared to share some similarity. The similarity alone was not enough to warrant infringement because the court decided that there also had to be a causal connection between the works – in other words, the defendant had to have been familiar with the claimant’s work. The evidence did not prove this, so the court dismissed the appeal.

Another interesting case is Larrikin v. EMI Songs Australia, which involved the famous song “Down Under” by the Australian band Men at Work. The rights holders of a folk song called “Kookaburra Sits in the Old Gum Tree” sued the owners of “Down Under” for copyright infringement. The judge presiding over this case found for the plaintiffs because the two songs shared objective similarity, the composers admitted that they were familiar with the “Kookaburra” song, and there was substantial copying taking place. The “Down Under” decision was met with a level of public scepticism similar to that shown with the “Blurred Lines” case. Steel comments that some music experts even argue that “Kookaburra” is itself a copy of an older Welsh folk song.

Steel concludes that the current test for originality in music does not recognize the often derivative nature of musical creation. It also fails to accept that some basic musical elements tend to be shared across genres and times. She proposes that the examination of originality should take into account “commonality in musical works” and advocates for a much wider range of unprotected musical ideas.

This is an excellent article that proposes a new exploration of how courts approach originality in music. When so many people disagree with the state of the law, there is a good chance that current standards may not reflect reality. This article proposes an interesting retake on an old standard. A remix, if you may.

Cite as: Andres Guadamuz, Is It Time to Examine the Concept of Originality in Musical Works?, JOTWELL (March 29, 2017) (reviewing Emma Steel, Original Sin: Reconciling Originality in Copyright with Music as an Evolutionary Art Form, 37 Eur. Intell. Prop. Rev. 66 (2015)), https://ip.jotwell.com/is-it-time-to-examine-the-concept-of-originality-in-musical-works/.

Are Intellectual Property Retaliations Against Violators of WTO Agreements Ineffective?

Sarah R. Wasserman Rajec, The Intellectual Property Hostage in Trade Retaliation, 76 Md. L. Rev. 169 (2016), available at SSRN.

Twenty-some years ago, there was much speculation about how well the World Trade Organization (WTO) dispute resolution process would work, and in particular, whether developed countries would be more likely to comply with their WTO obligations in respect of developing nations because the latter would have the right, subject to approval by the relevant WTO Dispute Settlement Body (DSB), to retaliate against violations of WTO obligations by suspending enforcement of intellectual property rights (IPRs) affecting the violator’s industries.

A central premise of creating the right to retaliate against IPRs was that developed countries’ interests in ensuring respect for its nationals’ IPRs would create a more powerful inducement to treaty compliance than the opportunity to retaliate only against similar types of goods (e.g., bananas or cotton).

So here we are in 2016. After more than two decades of experience with dispute settlements under the WTO agreements, there is a tale to be told about IPR cross-retaliation, and Rajec tells that tale very well. The WTO agreements established a dispute resolution procedure under which nations can formally complain about another nation’s claimed violations to a DSB that will then adjudicate the dispute. If the complaint has merit, the DSB will consider what remedial measures the complainant should be able to take against the violator if it does not respond by coming into compliance. Rajec reports that in a substantial majority of cases, nations decide to comply with their treaty obligations once the DSB has ruled that a violation has occurred, although in about nine percent of cases, violators have remained “unabashed[ly]” noncompliant.

In three cases, the DSB has approved a complainant’s request to retaliate against a violator by suspending IPR enforcement. Yet in none of these cases has the complainant nation followed through by actually going forward with the IPR suspension. Rajec is curious to understand why and what lessons might be learned by understanding what happened.

One case involved Antigua and the United States over the latter’s online gambling ban, which harmed Antigua’s industry. The DSB found that the U.S. was in violation of WTO treaty obligations by imposing this ban. The U.S. refused to change its law to comply with the treaty. Recognizing that it was infeasible for Antigua to retaliate effectively in the same sector as that in which the U.S. violation had taken place, the DSB approved cross-retaliation against U.S. film and music industries through a suspension of Antigua’s obligation to enforce U.S. copyrights.

Despite the DSB approval of this measure, Antigua has not actually suspended copyright enforcement. Rajec offers some possible explanations for the non-suspension, including some concern that Antigua might have about possible U.S. retaliation against the Antiguan tourism industry. She notes that it would also be costly for Antigua to set up a website to allow users to get access to infringing copies of U.S. films and sound recordings. Another consideration is that the DSB did not permit unlimited infringements to occur, but only at a level of $21 million annually, which might be difficult for an infringement-enabling site to calibrate. (Quite recently, however, Antigua announced it is planning to suspend copyright enforcement, so the drama continues.)

A second dispute was between Brazil and the United States over U.S. subsidies to its cotton industry. A DSB found the U.S. in violation of its treaty obligations because of these subsidies. It approved a Brazilian proposal to retaliate against the U.S. in part by suspending enforcement of U.S. pharmaceutical patents. Because Brazil has a domestic pharmaceutical industry and a large market for pharmaceutical products, a suspension of these IPRs posed a credible threat to U.S. industry interests. While the U.S. chose to remain noncompliant with its treaty obligations, it offered a financial settlement that, in effect, provided subsidies to Brazilian cotton producers. Rajec points out that this type of resolution is consistent with the theory that DSB remedy rulings should aim to provide compensation for violations rather than only inducing compliance with treaty obligations, as some commentators have assumed.

A third case involved a dispute between Ecuador and the European Union over the latter’s tariffs on bananas. DSB arbitrators recommended $201 million annual suspension of EU rights in sound recordings, industrial designs, and geographic indicators as retaliation for violating WTO agreements. Because the EU negotiated a settlement for tariff reductions over time, Ecuador did not go forward with retaliating against EU nationals’ IPRs.

The Ecuadorian and the Brazilian cases exemplify IPR cross-retaliation as a useful mechanism for encouraging nations to find a way to settle their differences, even if the settlement does not result in bringing the violator into full compliance with treaty obligations.

Much of Rajec’s article is devoted to a theoretical exposition about the purpose(s) of the WTO remedial scheme. Some commentators endorse compliance-inducement as the proper purpose of the remedies scheme, while others think that the WTO regime works as well as it does because nations can opt out of compliance on some occasions when their idiosyncratic national interests make noncompliance a better option than compliance, as long as the nations are willing to provide some compensation when they violate WTO agreements in a manner that harms other nations’ industries. Rajec’s treatment of these issues is nuanced and well-developed.

As a pragmatist, it struck me that the two purposes Rajec discusses may be more compatible than they might initially seem: The dispute settlement process may aim mainly to encourage compliance with treaty obligations, but it also provides a mechanism for inducing violators to provide some compensation for harms caused to other nations’ industries, albeit obliquely, when violators choose to remain noncompliant.

Rajec’s main thesis is that the ability to engage in IPR cross-retaliation is not as effective in inducing compliance with WTO treaty obligations as some have posited. This is partly due to inherent structural imbalances among nations. Small developing nations (e.g., Antigua) often lack the bargaining power and infrastructure to make the threat of IPR retaliation seem powerful enough to change a large developed nation’s practices and willingness to violate treaty norms.

In addition, IPR retaliation is not as simple to achieve as tariff-based retaliations are. Tariff retaliations are easy because the government must only establish the higher tariff rate and enforce it. However, to retaliate as to IPRs, the complaining nation must motivate other actors (e.g., domestic pharmaceutical manufacturers) to take advantage of an IPR suspension, even though that suspension may not last all that long, so an investment in authorized infringement may be undermined once the authorization to infringe ceases, as the WTO scheme assumes will happen.

Having followed the debate over IPR retaliations in the 1990s and wondered what happened, I was very pleased to have Rajec’s report on its conditional success.

Cite as: Pam Samuelson, Are Intellectual Property Retaliations Against Violators of WTO Agreements Ineffective?, JOTWELL (March 2, 2017) (reviewing Sarah R. Wasserman Rajec, The Intellectual Property Hostage in Trade Retaliation, 76 Md. L. Rev. 169 (2016), available at SSRN), https://ip.jotwell.com/are-intellectual-property-retaliations-against-violators-of-wto-agreements-ineffective/.