Work
29.November 2007 - 00:00
Riffs and other distinguishing parts of musical compositions: position in copyright law
The digital environment and networked services have given rise to a new problem as regards the copyright legislation concerning music.
Digital music applications, for example mobile phone ringtones, make use only of what, more than anything else, makes a particular piece of music identifiable as such. That part of the piece, however, may not have been created by the person registered as the author of the entire work or anyone termed a participant in some other respect. To cite the example of Finland, the copyright notice, to all intents and purposes, determines who will be paid royalties for use of the work.
The problem has been highlighted especially by the question of riffs: a riff is often the distinguishing part of a piece that is used in applications. The creator of such a riff, however, is in many cases not entitled to any royalties arising out of exploitation of the piece. When the riff is used for, say, a ringtone, the royalties are paid to the parties specified in the copyright notice. That was the matter at issue in the Procol Harum lawsuit in the United Kingdom, which eventually led to a ruling to the effect that the creator of a riff has to be recognised to have a claim to royalties, though not applying retroactively. Decisions tending in different directions have, however, also been taken in Member States.
Is the Commission aware of this legal problem? Will it take steps to ensure that, when royalties are shared out, contributions which, from a copyright law perspective, indisputably match the definition of a work are systematically taken into account in the Member States, bearing in mind that the resulting economic benefit would otherwise accrue to those who were entitled only in the formal sense?
Answer given by Mr McCreevy on behalf of the Commission
The Commission is well aware of the United Kingdom (UK) High Court case over who wrote the hit song ‘A Whiter Shade of Pale’ involving the 1960s rock group Procol Harum. In this case, Mr Justice Blackburne ruled that the composer of a ‘distinctive organ melody’ was entitled to claim co-authorship as the judge was convinced ‘… that the organ solo is a distinctive and significant contribution to the overall composition and, quite obviously, the product of skill and labour on the part of the person who created it’(1).
The case reveals that the notion of authorship in copyright rules is closely associated with the criterion of ‘originality’. A work is generally protected by copyright if it reflects the author's ‘own intellectual creation’. However, what exactly is considered as reflective of the author's own intellectual is highly dependent on the facts of each case.
Whether a distinctive melody is considered as a work of authorship is also highly dependent on the facts of the individual cases that arise before the national courts. In addition, weighing the individual contributions to a given work is equally dependent on a fact-specific appraisal. For example, in the Procol Harum case, the UK High Court held that the composer of the organ melody was entitled to 40 % of the copyright royalties, while the lyricist, Keith Reid, would be entitled to the rest. Appraising the originality of a work and measuring the significance of different original contributions to the work are, as the example shows, matters of fact that need to be left in the discretion of national courts.
The digital environment and networked services have given rise to a new problem as regards the copyright legislation concerning music.
Digital music applications, for example mobile phone ringtones, make use only of what, more than anything else, makes a particular piece of music identifiable as such. That part of the piece, however, may not have been created by the person registered as the author of the entire work or anyone termed a participant in some other respect. To cite the example of Finland, the copyright notice, to all intents and purposes, determines who will be paid royalties for use of the work.
The problem has been highlighted especially by the question of riffs: a riff is often the distinguishing part of a piece that is used in applications. The creator of such a riff, however, is in many cases not entitled to any royalties arising out of exploitation of the piece. When the riff is used for, say, a ringtone, the royalties are paid to the parties specified in the copyright notice. That was the matter at issue in the Procol Harum lawsuit in the United Kingdom, which eventually led to a ruling to the effect that the creator of a riff has to be recognised to have a claim to royalties, though not applying retroactively. Decisions tending in different directions have, however, also been taken in Member States.
Is the Commission aware of this legal problem? Will it take steps to ensure that, when royalties are shared out, contributions which, from a copyright law perspective, indisputably match the definition of a work are systematically taken into account in the Member States, bearing in mind that the resulting economic benefit would otherwise accrue to those who were entitled only in the formal sense?
Answer given by Mr McCreevy on behalf of the Commission
The Commission is well aware of the United Kingdom (UK) High Court case over who wrote the hit song ‘A Whiter Shade of Pale’ involving the 1960s rock group Procol Harum. In this case, Mr Justice Blackburne ruled that the composer of a ‘distinctive organ melody’ was entitled to claim co-authorship as the judge was convinced ‘… that the organ solo is a distinctive and significant contribution to the overall composition and, quite obviously, the product of skill and labour on the part of the person who created it’(1).
The case reveals that the notion of authorship in copyright rules is closely associated with the criterion of ‘originality’. A work is generally protected by copyright if it reflects the author's ‘own intellectual creation’. However, what exactly is considered as reflective of the author's own intellectual is highly dependent on the facts of each case.
Whether a distinctive melody is considered as a work of authorship is also highly dependent on the facts of the individual cases that arise before the national courts. In addition, weighing the individual contributions to a given work is equally dependent on a fact-specific appraisal. For example, in the Procol Harum case, the UK High Court held that the composer of the organ melody was entitled to 40 % of the copyright royalties, while the lyricist, Keith Reid, would be entitled to the rest. Appraising the originality of a work and measuring the significance of different original contributions to the work are, as the example shows, matters of fact that need to be left in the discretion of national courts.