How much music do you own? I am talking about tunes in any form – downloaded files, CD’s, DVD’s, sheet music or vinyl records. Even 8-track tapes if you are an aging baby boomer who never throws anything away.
What if I told you that almost nobody, yourself included, owns any music? You might argue with me or you might suspect that I asked a trick question. Yes, I was being tricky.
Few people own the music they listen to because of a complicated clump of copyright rules, cases and conventions that are rarely written down but have been accepted over hundreds of years. The short answer is that the artist or a music publisher almost always “owns” the music and consumers are only granted permission to listen. The limits of that permission are interesting and affect businesses and individuals in ways that are not always obvious.
The basic rule is this. When you buy music you might own the physical media but you almost never acquire ownership of the music itself. Let’s take a CD. When you paid your twenty bucks or so to get an album you thought you had bought the music. What you actually own is some plastic, metal and cardboard for the liner. You do not own the valuable part, the music.
Some say you only license the music, others say it is a permission which exists outside of licensing. For our purposes it does not matter. When you buy a CD or download something from a music service you are paying for the right to personal listening only. If it is in your car, or your house, or your shower and it is only you listening, or maybe with family members or a few friends at a party there is no problem. That use is allowed.
But if you play that music over your office’s intercom system, in your restaurant, over a telephone on-hold system, synchronize it to your kid’s birthday video on YouTube or play the song during a slide-show montage at a wedding, things change. All of those uses and more are outside of personal listening. You probably have not obtained the rights for them. They require a separate license and usually additional payments.
Playing music in a business or restaurant where the public can hear it is the most common gaffe. Collectives such as SOCAN exist to enforce and collect royalties on behalf of music owners for such use. Otherwise it would be impractical for Paul McCartney to go to every restaurant in Canada and find out if his songs were being played. Anyone who is doing so and has not obtained a license will get a choice from SOCAN: sign our license and pay the required fees (usually a blanket charge based on size of the business or number of listeners) or be sued for copyright infringement. Any performance accessible by the public in this way will usually require this license.
In recent years “synchronization rights” have become an issue with things like online videos or photo galleries. Sure, there may only be 7 views of your daughter’s birthday party on YouTube where you included “She’s a Beauty” as background music (Who are the seven? Mom, Dad, all the grandparents and one person who mistakenly landed on the page searching for face cream). The actual viewer count does not matter. Putting something on YouTube is a public performance of the music and needs to be licensed accordingly. It may just be taken down but it is technically a copyright infringement and could create a lawsuit.
Same thing with photo slide shows or collages which people create and send to family and friends. You may not be the only person who has used “What A Wonderful World” as a soundtrack to your travel photos but it does not matter. Circulation to a group that constitutes the “public” is enough to attract liability. There is no true definition of public but it can be a very small number if access is not heavily restricted.
A common fallacy is that use of a copyrighted work is OK as long as there is no profit made, or if credit is given to the original author. Neither of these are true. Yes, the owner could agree to waive their right to a royalty because of the exposure they get or because they do not want to sue a charity. But they need to agree. It is their property and they can do almost anything they want with it.
Some try to argue that the use is so trivial it will never be caught. That might be true although it does not make it any more legal. Content publishers are hyper-vigilant about their rights. Their tracking software will probably find improper use of their product on YouTube within seconds. If you download content over BitTorrent or other sources they can locate your IP address almost instantly. Whether they act on that information is their choice but use without permission is nearly always illegal.
Another potential trap is movies on DVD’s or through downloads. When you buy or rent a movie it is for your own personal use. It does not allow you to show it in a public place, whether or not you charge admission. Public display requires a much higher fee to cover the performance license.
There is more awareness of the abstract world of intellectual property as physical media becomes less common. Many of us now just rent or stream music and ownership is almost beside the point. Just keep it in mind if you are ever planning on using songs or videos other than as a content consumer.