Updated: Jan 17
Music is one of the most beloved art forms in the world and the legal frameworks surrounding it can be described as complex yet fascinating. Music needs a vehicle to reach its audience and through the years this medium is constantly reinvented. As most of you know and some of you might remember first came the vinyl records, then the cassettes, then the CDs and now digital music applications. Thus, these days digital music is the type of music mostly used by consumers. The Internet is one of the major factors that revolutionised the way music is being distributed. Currently, a variety of music applications (YouTube, Spotify) are available online to download/upload or stream your favourite music and enjoy your favourite artists. However, with these new developments certain issues have surfaced regarding the lawful use of music online.
Most of us are familiar with the popular term of music piracy. So, what do we actually mean when we coin the term music piracy online? From a legal point of view, this term is referred to as digital music copyright infringement. It has been argued that ““piracy” means using the creative property of others without their permission.” Thus, if one wishes to copy, distribute or exploit a copyright protected musical work in some way, it is important to first acquire permission from the copyright owner otherwise, he/she could be held liable for copyright infringement. Though, in certain special instances the fair dealing exceptions are available as defences in the UK in case someone has been accused of copyright infringement.
At this point, it should be noted that musical creations are protected under copyright law, which translates to the fact that the creators of musical works enjoy certain rights that enable them to protect their creations, while benefiting commercially or otherwise from their creations. In the UK according to Section 3(1)(d) of the CDPA 1988 ““musical work” means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music”, while according to Section 5A of the CDPA 1988 a sound recording can be defined as “a recording of sounds, from which the sounds may be reproduced, or a recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be produced.”
It would be beneficial to explain how copyrighted music material happens to become available online. One road that leads to music being accessible online is when “the author or copyright owner of the work uploads the material in order to reach a broad audience of users”. The other option is when “someone decides that the particular material should be available for free and uploads it him or herself, thereby making the material available for download.” It should be pointed out that “the former scenario is typically practiced by artists seeking exposure, or record labels looking to promote a forthcoming album.” However, “the latter practice constitutes piracy because it is an unauthorized use of a copyrighted work.” It must be also acknowledged that “piracy is practiced both by individual consumers making copies for their own use, and by “professionals” who seek to make content available on a wide scale.”
So, the issue that appeared with the invention of digital music and the consequent online music distribution goes as follows. The emergence of new technological developments contributed to the easy and fast unauthorized dissemination of music online. Certain technologies such as P2P (Peer to Peer) technology and relevant music inventions that took advantage of it like Napster, Grokster and LimeWire were responsible in the early 2000s for the mass distribution of copyright protected musical works and sound recordings online. Although music lovers and consumers became excited about these new developments and the prospect of listening to their favourite music free of charge appeared revolutionary, the consequences on musicians and their rights were overlooked. These varied from financial losses to the devaluation of their music and fear of losing control over how their music is being distributed.
A series of lawsuits against these music companies led momentarily to a relative halt of this phenomenon. However, it should be noted that this phenomenon still exists and complicates the world of music copyright law and poses significant problems to the functionality and efficient regulation of music copyright online. Recent methods like “stream ripping”, a method that is used to download music illegally from streaming services continues to aid individuals, who wish to acquire digital music free of charge. It has been argued, though that the emergence of music streaming services online such as the popular Spotify have contributed to the curb of this phenomenon. This is because either for free or with a small fee, consumers can have access to endless music be it old classics or the newest trending musicians. Thus, accessing music online illegally becomes less appealing and potentially of no use. This happens since the needs of consumers can be satisfied in another way, where the availability of certain features that these services provide to consumers such as the opportunity to make their own playlists can make their experience even more enjoyable. It should be pointed out though, that over the years there have been artists that have raised concerns regarding the policies of these music streaming services and whether they are advancing the interests of musicians or are hindering them instead.
Arguably, there are mixed views regarding the issue of digital music piracy. Some view it as a serious threat to their rights and position within the music industry, while others see no apparent harm done due to its existence. On the one hand musicians, record labels and music publishers see it as a negative development, while some users or the services that enable this practice do not see why their behaviour should be classified as illegal. David Bowie some years ago even argued that “Music itself is going to become like running water or electricity”. By which he more or less meant that music would stop being protected under copyright laws and would become freely distributed online without the need to acquire permission from the copyright owner beforehand. So far, this statement has not turned out to be true. However, it does highlight the enormous difficulties that lie in trying to effectively regulate the constant copyright violations that occur online.
Only time will tell if copyright will manage to keep up with the ever-expanding challenges that are presented and whether it will successfully continue fostering creativity within societies. Concluding, it is important to note that in order for this phenomenon to be limited, the education of the public on these matters and raising awareness in relation to this phenomenon and its consequences is certainly a step in the right direction. Thus, it would be beneficial when one comes across websites that seem illegal to think twice before downloading or sharing music from these unauthorized sources. The old cliché that our actions do matter regardless of how big or small we may think they are seems true in this case. A collective effort to abstain from actions that jeopardize the value of music and consequently harm the rights of musicians will contribute towards the limitation of this phenomenon.
 Lawrence Lessig, Free Culture: How Big Media Uses Technology and The Law to Lock Down Culture and Control Creativity (Penguin Press 2004) 53.  Wendy M. Pollack, ‘Tuning in: The Future of Copyright Protection for Online Music in the Digital Millennium’ (2000) 68 Fordham L Rev, 2448 <https://heinonline.org/HOL/P?h=hein.journals/flr68&i=2463>.  ibid.  ibid.  ibid.  ibid.
 Erik Kain, ‘Ten Years Ago David Bowie Predicted Copyright Would Be Dead – But This Is Just The Beginning Of The End’ (Forbes 2012) <https://www.forbes.com/sites/erikkain/2012/02/22/ten-years-ago-david-bowie-predicted-copyright-would-be-dead-but-this-is-just-the-beginning-of-the-end/?sh=5408fa0a41c5>.
A&M Records, Inc. v. Napster, Inc. 239 F.3d 1004 (2001)
Arista Records LLC v. Lime Group LLC, 715 F. Supp. 2d 481 (S.D.N.Y. 2010)
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005)
Copyright, Designs and Patents Act 1988
Lessig L., Free Culture: How Big Media Uses Technology and The Law to Lock Down Culture and Control Creativity (Penguin Press 2004)
Pollack W.M., ‘Tuning in: The Future of Copyright Protection for Online Music in the Digital Millennium’ (2000) 68 Fordham L Rev <https://heinonline.org/HOL/P?h=hein.journals/flr68&i=2463>
Kain E., ‘Ten Years Ago David Bowie Predicted Copyright Would Be Dead – But This Is Just The Beginning Of The End’, (Forbes 2012) <https://www.forbes.com/sites/erikkain/2012/02/22/ten-years-ago-david-bowie-predicted-copyright-would-be-dead-but-this-is-just-the-beginning-of-the-end/?sh=5408fa0a41c5>
McIntyre H., ‘What Exactly is Stream-Ripping, The New Way People Are Stealing Music’ (Forbes, 11 August 2017) <https://www.forbes.com/sites/hughmcintyre/2017/08/11/what-exactly-is-stream-ripping-the-new-way-people-are-stealing-music/amp/?fbclid=IwAR3TFbu908k0wrWDo-hpkCHqoBjVbSgf6QC6jBQMt5hPi-iKNQGxcNmEDnw>
Rechardt L., ‘Streaming and Copyright – A Recording Industry Perspective’ (WIPO Magazine, May 2015) <https://www.wipo.int/wipo_magazine/en/2015/02/article_0001.html>