Out of Tune
Why Copyright Law Needs Music Lessons
This chapter offers a critical analysis of copyright law that integrates insights from music. The authors argue that the unique qualities of musical works magnify the mismatch between creative practices and copyright doctrine, and suggest that an interdisciplinary analysis can shine a revealing light on both the problem and potential paths to improvement. Beginning with an overview of copyright doctrine in Canada in respect of musical works and music infringement claims, the authors then borrow analytical concepts from the discipline of music theory to problematize copyright’s “reasonable listener” test for determining substantial copying. Using a specially-designed musical composition, the authors illustrate how and why this test may fail to perform its necessary role in the infringement analysis. The authors conclude by identifying some ways in which the legal analysis could be improved, including a more extensive use of both expert and survey evidence, and greater consideration of the accepted norms and practices of the relevant creative community. The overarching aim of this chapter is to demonstrate the importance of bringing the insights from musical and other creative disciplines to bear on the law of copyright, so that it might more accurately reflect the very practices it is meant to encourage.
Carys J Craig is an Associate Professor at Osgoode Hall Law School, York University, where she has been a member of the full-time faculty since 2002 and director of the Professional LLM Program in Intellectual Property since 2009. A recipient of the Osgoode Hall Legal & Literary Society Excellence in Teaching Award, Dr Craig teaches a variety of JD and graduate courses in the field of intellectual property law. She researches and publishes on domestic, comparative, and international copyright and trademark law and policy, with an emphasis on public interest theory and the public domain. Her award-winning work has been cited with approval by the Supreme Court of Canada. Her recently published monograph, Copyright, Communication, & Culture: Towards a Relational Theory of Copyright law (Northampton, MA: Edward Elgar Press, 2011), critically examines the theoretical foundations of modern copyright law. Dr Craig holds a First Class Honours Bachelor of Laws (LLB Hons) from the University of Edinburgh in Scotland, a Master of Laws (LLM) from Queen’s University in Kingston, Ontario, and a Doctorate in Law (SJD) from the University of Toronto, where she was a graduate fellow of the Centre for Innovation Law and Policy.
Guillaume Laroche devotes his research time to music, law, and interdisciplinary topics at the intersection of these two fields. In music, his work emphasizes the analysis and modelling of compositional techniques in post-1950 art and vernacular music, most notably video game soundtracks. In law, he researches intellectual property, language rights, and education law. At the intersection of music and law, his work broadly encompasses how copyright conceives of musical creativity. As a recipient of major scholarships from the Social Sciences and Humanities Research Council of Canada and the Fondation Baxter & Alma Ricard, Guillaume earned a Master of Arts in music from McGill University and a Master of Laws from Osgoode Hall Law School. A public school educator by profession, he remains active as a musician by performing as a pianist and singer, conducting ensembles and composing new works.