by Andy Harris
The answer to this question is clearly yes, as recorded music included in complication albums will already be protected by copyright, both in relation to the underlying composition and the particular sound recording used. However dance label Ministry of Sound are suing Spotify on the basis that copyright extends to the particular ‘running order’ of tracks on a compilation album. This is a rather different argument.
Although Spotify have the rights to stream all the tracks which appear in a MoS compliation, MoS are unhappy that the Spotify service allows user to copy the playlist (i.e. tracks and running order) exactly. They claim they go to a lot of effort in deciding – or curating to use their language – the final playlists for their compilations, and this act of deciding what tracks appear and in what order should itself be subject to copyright protection.
Although creating playlists is a major part of the Spotify service, with apparently more than 1bn playlists being created since its launch in 2008, it may be the recent feature which allows easier discovery and sharing of playlists that has upset MoS.
It will be interesting to see how this case develops. Although I don’t doubt that MoS invest a good deal of time and effort in ‘curating’ their compilations, it does look a difficult argument. Particularly if you consider the reluctance of the courts to acknowledge the role of copyright with television format rights. As copyright does not protect an idea, the courts were concerned that bestowing copyright protection for a television format would effectively be allowing copyright protection for little more than a basic concept or idea. Hence why back in the 1980s the courts refused to agree that the format for Opportunity Knocks was protected by copyright.
Matters have moved on somewhat from that decision and the television industry remains happy to view format rights as incredibly valuable assets regardless of what lawyers say (as Messrs Cowell and Tarrant can confirm). However you need sufficiently numerous, identifiable and novel elements before you would confidently claim that your ‘format’ is protected by copyright. Applying this to music compilations is going to be harder when the constituent elements (i.e. individual tracks) are ones which the alleged infringer is entitled to use.
The kids are alright...
Interestingly this dispute arises just as Ofcom has published its final findings on its Hargreaves Review related survey on online use of copyright material. The findings suggest that actual infringing use is lower than expected. A particularly interesting finding was that while a small number are responsible for the majority of illegal downloads (no surprise there), those ‘guilty few’ were often also downloading legally as well. Maybe we haven’t raised a generation who think they don’t need to pay for music after all...