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Willis, Mike --- "Review of Alderson, Mathew (General Editor) Current Issues in Music Law (St Leonards, NSW: Prospect Media 1998)" [1999] DigTechLawJl 18; (1999) 1(3) Digital Technology Law Journal 18

Review of Alderson, Mathew (General Editor) Current Issues in Music Law (St Leonards, NSW: Prospect Media 1998)

Mike Willis
Asia Pacific Intellectual Property Law Institute, School of Law, Murdoch University

1. This collection of papers is principally directed at the Australian music industry although, in examining many of the legal issues, contributors draw on US and European case law and legal developments, as well as international perspectives.

2. The editor introduces this text as a collection of articles concerning legal issues (then) currently of particular interest to the music industry. The articles, we are told, have been ordered in a way which places the most pressing or controversial topics at the forefront. Towards the latter part of the collection are those pieces dedicated to the more 'ongoing' matters. Each paper within the anthology is designated a chapter.

3. Some of the contributions were prepared specifically for this book while others, the reader is told, have appeared in earlier publications. However, which of the articles belong in which category is not revealed.

4. In the eyes of the editor, the most controversial issue claimed to be facing the music industry was centred around (then) recent legislative changes to the Copyright Act 1968 (Cth) and whether such changes were likely to lead to a fall in the price of CDs. One is inclined to say that, as controversial as that issue was - and possibly remains so - it constituted but one of several contentious intellectual property legal issues within the music industry at that time. Moreover, a number of these issues may well prove to have greater impact on the industry in the long term and, indeed, several of them are discussed in this book.[1]

5. Chapters 1, 2 and 3 discuss the controversy mentioned above and deal with the 1998 Copyright Act amendments which have substantially removed the parallel importation provisions applicable to sound recordings. The discussions reflect both sides to the argument with two decrying the move and one in support of it.

6. The contributors amongst this initial grouping include the Executive Director of the Australian Record Industry Association and a couple of analysts at the Australian Competition and Consumer Commission. One does not have to be a legal genius to work out the direction from which these two parties approach the issue. The third contributor is a pair of legal practitioners who talk with quite a deal of passion and conviction about the amendments as constituting an 'extremely short-sighted' approach with potential 'devastating' effects and likely 'irreparable' damage for the Australian record industry.

7. The articles usefully canvass the breadth of issues which characterised a very protracted, if not energised, debate in Australia. With the benefit of hindsight, after twelve months or so of the amendments taking effect, what seems clear is that the above dire predictions along with another much-touted one of 'certain detriment to the music industry and to Australian cultural development'[2] have failed to materialise. One should add, of course, that neither has the projected gain been delivered. The price of CDs appears to have been only marginally reduced.[3]

8. At the same time, the issue continues to run. A recent turn of events has seen the Australian Competition and Consumer Commission institute legal proceedings against Universal Music, Sony Music, Warner Music, the Australian Record Industry Association and Music Piracy Investigation Pty Ltd. The Commission is alleging that these parties have taken unlawful action in order to discourage or prevent Australian businesses from selling competitively priced 'parallel imports' of compact discs.[4] Moreover, the Government appears concerned not to let the matter rest. A new amendment is now before the parliament designed to close off a perceived loophole in the previous legislation. Its aim is to extend application of the 1998 amendments to the Copyright Act to cover 'enhanced' CDs.[5]

9. Chapter 4 discusses the proposals outlined in the Australian Government's 1997 Discussion Paper, Performers' Intellectual Property Rights,[6] to strengthen the protection currently afforded performers' under the Copyright Act . The authors take the view that the Paper's proposals for a range of new copyright-style rights for performers may stifle music industry practice and development. They advocate instead the introduction of a 'more effective and simpler' right of exploitation for performers. The proposals remain under consideration by the Government as part of a larger issue as to whether or not Australia should accede to the WPPT.[7]

10. Chapters 5 and 6 are two 'big picture' articles examining the evolving role of media technology in the music industry. Presumably delivered to an audience of music industry executives, these are articles largely about the need to maintain 'control'. This is control by musical organisations: control of music, its presentation, marketing and exploitation. The challenges posed by MP3 technology, the potential for copyright law to be subsumed by contract law, or the legal challenges posed by direct linkage between creator and consumer fail to arouse debate.

11. Perhaps with a more practical bent, Chapter 7 discusses the adequacy and interaction of music-related copyright law and the Internet. The authors take a wide-ranging look at an interactive future maintaining that the challenges posed by the Internet are technological, practical and philosophical. They provide a comprehensive look at the Internet processes which challenge copyright, including the act of making copyright material available on-line, reproductions made in subsequent transmission and audiostreaming. It then puts these issues in the context of the Digital Agenda 1997 Discussion Paper.[8] Notwithstanding the advent of the Government's Copyright Amendment (Digital Agenda) Bill 1999 issues raised about the effectiveness of exemptions to infringement within a digital environment, enforcement and approaches to ISP liability remain current.
    
12. Chapters 8 and 9 deal with the interesting issue of sampling in music recording and the challenges that such a process poses for both the industry and the courts. An industry perspective advocating a fair and reasonable negotiated licensing regime sits astride a legal officer's call for a new approach to be taken to sampling by both the music industry and the courts.

13. The final three chapters then usefully examine the pitfalls and practicalities of recording and music publishing agreements.

14. The text is a coherent collection of articles touching on many of the different facets of intellectual property law as it applies to the music industry. There is much useful information about the relevant law as well as music industry practice related to the practical issues of recording and publishing agreements. Whilst the battle over the revised provisions concerning parallel imports of sound recordings may have been waged and lost, as indicated here, the debate nevertheless lives on.

15. For readers, the reality is that copyright law is increasingly subject to the pressures for reform brought on by technological developments. There may possibly be few areas where this is more manifest than that relating to the music industry. Just as one reaches a point where it looks safe to draw breath from the unrelenting pressure to make suitable reforms within the law, an urgency mounts to implement more of them.

16. An obvious example of where that pressure is about to effect change is the Copyright Amendment (Digital Agenda) Bill 1999. The proposed new right of communication to the public will affect owners of musical works and sound recordings, and performers will no longer have a diffusion right in fixations of their performances because this activity will be incorporated into a more broadly defined right of broadcast. Also, the provisions relating to technological protection measures and rights management information might be seen as favourable to those players in the music industry wanting to avoid the (so-called) 'disastrous' consequences of music-on-demand. Clearly, given its publication date, the text does not deal with the detail and implications of what the Government now proposes in the Bill.[9]

    Current Issues in Music Law retails at $145 00 and is published by Prospect Media Pty Ltd.

    Notes

    [1] Two equally contentious issues that come to mind are the ongoing development of MP3 technology and the implications for 'fair dealing' copying of projected moves towards expanded copyright protection. Another issue that is then taken up in this book is that concerning the challenge to music-related copyright protection posed by the digital environment.

    [2] Australian Labor Party statement opposing the reform, quoted in Megalogenis, G, 'Reality Check', The Weekend Australian, 10-11 July 1999.

    [3] See 'Tuning up for the Net', The Weekend Australian, 10-11 July 1999.

    [4] Australian Competition and Consumer Commission, Media Release 166/99, 3 September 1999. The 'unlawful action' pertains to alleged breaches of sections 47, 46 and 45 of the Trade Practices Act 1976 (Cth) involving (respectively) exclusive dealing, misuse of market power and arrangements having the purpose or likely effect of substantially lessening competition.

    [5] These CDs contain copyright material additional to the sound recording, eg film clips or photographs.

    [6] Australia. Joint publication of Attorney-General's Department and the Department of Communication and the Arts, Performers' Intellectual Property Rights: Scope of extended rights for performers under the Copyright Act 1968 , (Canberra: 1997) at <http://www.dcita.gov.au/>.

    [7] The World Intellectual Property Organisation's Performances and Phonograms Treaty 1996.

    [8] Australia. Attorney-General's Department and Department of Communications and the Arts Copyright Reform and the Digital Agenda (Canberra: AGPS, 1997).

    [9] This is apart from a very brief reference in Chapter 7 to then foreshadowed copyright law reforms re the 'digital agenda'.