Content uploaded by Paul G. Oliver
Author content
All content in this area was uploaded by Paul G. Oliver on Jun 26, 2023
Content may be subject to copyright.
e Present and Future
of Music Law
Ann Harrison and Tony Rigg
The Present and Future of Music Law.indb 3 12-05-2021 16:49:41
4
Music copyright, creators and fans
Enemies or friends in the digital domain?
Paul G. Oliver and Stefan Lalchev
We live in a time when digital technologies, particularly social media and
streaming services, are the most eective and ecient platforms for the
exposure of music (Glicksman 2020; Mercuri 2019; Wilson 2020). Market
reports suggest that user-generated content is at the centre of many success
stories (Roma and Aloini 2019). However, it has become clear how such forms
of online success could be in an artist’s best interest because, nowadays, their
revenue from selling music is only a fraction of what they can potentially earn
as an inuencer. In order to understand how this has occurred, one needs to
fully comprehend the impact of digitalisation upon the circulation and control
of intellectual property rights (Liebowitz and Watt 2006). Without copyright,
not one single branch of the music industry would exist (Gordon 2015). In
fact, one could easily see why the contemporary music industry is perhaps
best understood as a ‘copyright industry’ (Wikström 2009). In addition to the
perspectives of music industry professionals and academics alike, one must also
acknowledge that the game has changed with new players and dierent rules.
For diering reasons, the distinction between fans and creators has become
blurred, which raises important questions when analysing from a legislative
point of view.
is chapter will provide a critique of how the roles, interrelations and
challenges of copyright, creators and fans have evolved over the past two
decades. Furthermore, it will explore the inherent conicts between rule of law
and what is in the best interests of creators, the business and the fans, as well as
how current tensions may be resolved.
The Present and Future of Music Law.indb 82 12-05-2021 16:49:51
83
Music Copyright, Creators and Fans
e evolving role of fans as creators
At the beginning of the twenty-rst century, there was a signicant moment of
digital disruption, which forever changed the fabric of the music industry. Until
this point, the music industry was making billions of dollars per year from recorded
music through record sales, royalties and ancillary rights (Page 2020); however,
the internet and new technologies caused a sea change in how music was created
and consumed and the associated copyright laws (Rostama 2015). Napster’s peer-
to-peer le-sharing platform, for example, allowed music fans to access an almost
unlimited digital database of users’ recorded music collections, which led to a
revolutionary shi in power between major record labels, publishers, artists and
fans. is was a line in the sand and marked a new era of extreme creativity,
innovation and change for the music industry (Tschmuck 2012).
With this new era came alternative business models that had to compensate
for the unforeseen nancial losses of copyright owners, but it was also a key
milestone in the evolving roles of creators and fans. ese two disparate roles,
which were once clearly separate, were brought together as a result of the growth
in the use of social media platforms, thus presenting opportunities for unique and
innovative content creation, which could be easily shared without interference
from gatekeepers. In other words, creativity remained a key point of separation
between artists and fans, but also encouraged fan engagement, creation and the
‘circulation of cultural goods’ (Morris 2013: 281). Pearson (2010: 1) agrees that
digital technologies have simultaneously empowered and disempowered music
fans while ‘blurring the lines between producers and consumers, creating
symbiotic relationships between powerful corporations and individual fans, and
giving rise to new forms of cultural production’, whereas, Galuszka (2014: 26)
refers to this changing relationship between artists, fans and the music industry
as the ‘new economy of fandom’.
e new opportunities for creating and sharing, freely and globally, led to
a rise in popularity of the term ‘user-generated content’, also known as ‘user-
created content’. In a report by the Organisation for Economic Co-operation and
Development (2007: 4), user-generated content is dened as content:
1. Made publicly available over the internet;
2. Which reects a ‘certain amount of creative eort’; and
3. Which is ‘created outside of professional routines and practices’.
The Present and Future of Music Law.indb 83 12-05-2021 16:49:51
84
e Present and Future of Music Law
In the past, artists were always seen as the creators, and fans were simply regarded
as consumers. However, advances in digital technologies, the internet and the
accessibility of audio visual creative tools have resulted in artists and fans now
oen working together as ‘co-creators’ with fans playing ‘a vital role in an artist’s
promotional plan’ (Music Ally 2018: 1). It could be stated that, nowadays, the
majority of user-generated content is created by fans, commonly referred to as
‘fan-generated content’.
An interesting point of thought is whether the rise of user-generated content
came as a result of the rise of social media or if it was the other way around,
as some of the most successful platforms today are almost entirely based on
user-generated content, such as TikTok, Twitch and YouTube. Nevertheless,
its evolution and impact have been well documented, particularly over the
past decade, which in turn has led to signicant challenges from a legislative
point of view. e diversity of user-generated content creation oen results
in copyright infringement, raising questions about who is liable and to what
extent.
Despite content creation and sharing being made signicantly easier, the
content itself remains a form of intellectual property, protected by copyright.
Copyright, literally meaning ‘the right to copy’, ‘is designed to serve the interests
and facilitate the creativity of musicians’ (Phillips and Street 2015: 342); however,
the main challenge is that ‘laws governing copyright have never been able to
keep fully abreast of changes in the way music is produced, communicated,
bought, and sold’ (Baskerville and Baskerville 2017: 22), especially via the
internet. e Copyright, Designs and Patents Act 1988 (CDPA), as amended, is
the ocial legal Copyright Act in the UK, and its protection applies to original
literary, dramatic, musical or artistic works. However, it is the term ‘original’ that
requires attention here, as it sets the entire basis for the existence of copyright,
even though its meaning is not dened in the Act. e strict legal denition of
original work is nothing more than work produced by an originator (Gaines
1991). e law of copyright does not establish a denition of originality, but
simply refers to it as the act of originating a piece of work, without reviewing
any other aesthetic characteristics or criteria. erefore, the manner in which
legislators treat the term ‘original’ is not much dierent from the way critics and
scholars do, when determining the originality of an artwork (Negus, Street and
Behr 2017), which would not have been an issue, if it was not for the fact that
copying, and similarity, have always been directly related to commercial music
products.
The Present and Future of Music Law.indb 84 12-05-2021 16:49:52
85
Music Copyright, Creators and Fans
User-generated content presents an even more complex challenge to
legislation than simply dening the term ‘original’. Undoubtedly, the decline in
physical music sales at the start of the new millennium caused all sectors of the
music industry to focus on trying to comprehend how digitalisation had changed
the consumption habits and values of listeners (Hardy 2012; Leyshon 2014).
With most rights-based attention falling on piracy, the Napster phenomenon
and the music industry’s attempts to ght illegal copying (Hardy 2012; Knopper
2009) resulted in the ‘criminalization of sharing’ (David 2010) and prosecution
of individuals for downloading music accessed from other fans (Alderman 2002;
Knopper 2009). While being accepted as a major threat to rightsholders, illegal
downloading has been eradicated as a result of the rise of streaming platforms
(Paine 2018); however, another serious issue is the signicant gap in copyright
legislation, which has been no less of a threat to the music industry for years.
Safe harbours and addressing the value gap
e Digital Millennium Copyright Act (DMCA), introduced in the United
States in 1998, and the E-Commerce Directive, implemented by the EU in 2000,
granted certain limitations to the liability of internet service providers acting as
online distribution network intermediaries. ose limitations have been called
safe harbours.
e E-Commerce Directive’s ‘overarching goal was to foster the development
of electronic commerce in the EU’, ensuring ‘the free movement of information
society services between Member States’, as well as ‘legal certainty and consumer
condence in online commerce’ (Madiega 2020: 1). Intermediaries were still
responsible for removing any copyright-infringing content, although the main
concern for the music industry was related to the potential ineciency of that
action and the fact that such content would be expected to easily reappear online.
Furthermore, there had been scope for abuse of the safe harbour exemption in
this fast-moving digital domain, mainly because this concept was created back
in the late 1990s, before the digital revolution, with many of the current internet
companies, including social media platforms, not being foreseen at the time.
e abuse of the safe harbour exemption has created this so-called value
gap, or transfer of value, which is ‘a mismatch between the value that online
user upload services, such as YouTube, extract from music and the revenue
returned to the music community’ (IFPI in Awbi 2018). In an attempt to
The Present and Future of Music Law.indb 85 12-05-2021 16:49:52
86
e Present and Future of Music Law
address this value gap, in 2018, copyright reform nally reached the European
Parliament, and aer a year of intense discussions, campaigns and lobbying,
on 26 March 2019, the music industry was able to celebrate the passing of
the new EU Copyright Directive (Garner 2019; Paine 2019). One of the main
reasons for such tensions around this new piece of legislation was to do with
the safe harbours and the controversial Article 13, later renamed Article 17. e
controversy around this article consists in opponents arguing that, while its aim
is to ensure that online content creators are being fairly compensated (Europe
for Creators 2019), it actually ‘threatens the open internet’ (Paine 2019). Not
surprisingly, this part of the new Directive, making platforms ‘responsible for
the use of copyright-protected material in content posted by users’ (Article13 .o
rg 2019) was not easily accepted by companies, such as YouTube, whose entire
business models were predominantly based on that same user-generated content
(Andrews 2018). e important question raised by this argument has been
whether this type of copyright law enforcement protects creators or, instead,
limits their opportunities to share content.
Copyright versus copyle
Despite the continued existence of arguably robust copyright law, there are
dierent ways that content creators can successfully duplicate or draw inspiration
from previous creative works. In fact, there are two dierent exceptions to
copyright: fair dealing, or its fair use equivalent in the United States, and de
minimis. Both exceptions have been interpreted extremely narrowly to date by
the law courts, with ‘no cases in UK courts that will determine what is “fair”
when it comes to quoting an artistic work’ (Ward-Ure 2018). Similarly, in the
United States, the fair use doctrine is open to interpretation, which is more
subjective and can sometimes cause diculties in terms of decision-making.
Copyright is based on the philosophy of restriction and relies, among
other things, on the originality of the work; on the other hand, copyle not
only represents freedom but also requires freedom (Joglekar 2018). e term
‘copyle’ was rst coined in relation to soware licensing – ‘granting everyone
the right to use, modify and distribute’ a program ‘on the condition that the
licensee also grants similar rights over the modications he [or she] has made’
(Mustonen 2003: 101). is concept of ‘some rights reserved’ paved the way for
a new type of thinking around how copyright could be more accessible in the
The Present and Future of Music Law.indb 86 12-05-2021 16:49:52
87
Music Copyright, Creators and Fans
digital domain. is subsequently inspired the free culture movement and the
inception of Creative Commons, which took the idea of giving away free licenses
and applied it to all types of online creative content. Even though this did not
necessarily solve the overall problem of implementing copyright law within the
digital environment, it did present an interesting alternative (Lessig 2005).
e continual advancements of digital technologies have contributed to the
homogenisation of creative processes and output, juxtaposed against the rigidity
of copyright laws, which has led to an exciting, yet uncertain, era for the music
industry. is is fundamentally dicult to legislate for as copyright laws are
designed with intent and do not change quickly; therefore, the underpinning
laws are slowly being transitioned to support these new types of output.
Ultimately, just as it has become much easier to create and release creative
content, it has also become easier to identify original content creators. erefore,
when a copyright infringement takes place, the original content creators may be
able to prove the paternity of their works with a simple online search through
the use of tagging and metadata. Similarly, as with materials, the internet is held
to the same legal standards because ‘copyright applies to the Internet in the same
way as material in other media; e.g. any photographs posted on the Internet are
protected in the same way as other artistic works; any original written work will
be protected as a “literary work”’ (Smartt 2017: 383).
User-generated content and the growth of social media
In the context of user-generated content, covered in this chapter, the history
of related social media platforms began in 2003. Within a short period of
time (2003–2006), three of the most inuential social media platforms were
launched: Facebook, YouTube and Twitter. And, while, at rst, Facebook
and Twitter were not specically oriented towards the sharing of user-
generated content – Twitter, for example, did not let users see photos or
videos without leaving the platform until late 2010 – the idea behind YouTube
from the beginning was to enable users to upload any video content online
and reach viewers globally (Hopkins 2006). In support of this statement,
the slogan ‘Broadcast Yourself’ remained an inseparable part of the ocial
YouTube logo until 2011. Moreover, the launch of more platforms, such as
Instagram, purchased by Facebook in 2012, and Twitch, acquired by Amazon
in 2014 encouraged the sharing of content and its dissemination even further
The Present and Future of Music Law.indb 87 12-05-2021 16:49:52
88
e Present and Future of Music Law
in a relatively straightforward manner. is did not require great technical
expertise or equipment, with the constantly ongoing development of new
features allowing dierent types of content-sharing and interaction between
creators and fans. At the same time, new types of crowdfunding platforms
emerged, such as Patreon, empowering creators to help them monetise their
videos on a large scale.
While we are on the topic of user-generated content, there is one particular type
of social media platform that has signicantly inuenced the interrelationship
between creators and fans. Short-form video sharing grew to mass worldwide
popularity with the Twitter-owned social network app Vine, launched in 2013.
Vine was originally released as an iOS app, followed by Android and Windows
Phone versions, showcasing user-generated content in the form of a few-
seconds-long looping videos to be shared across dierent social networks, and it
quickly became one of the top mobile applications (Souppouris 2013). However,
the Vine model was soon adopted by several other platforms that introduced
similar additional features, including the opportunity for users to upload longer
videos. As a result, Vine started to lose subscribers to its competitors, and in
late 2016 Twitter announced that the app would be discontinued. One platform
that managed to take the short-form video concept, and further expand it to
the point of reaching global success, was the Chinese-founded Musical .l y. First
released in 2014, its concept was to allow users to create and share short lip-
sync music videos, thus attracting millions of users globally. In 2016, another
Chinese company, ByteDance, launched a dierent social network app, which
was still focused on video-sharing. While Douyin was initially launched only for
the Chinese market, in early 2017 it reached Western markets under the name
TikTok. Later that same year, ByteDance acquired Musical . ly for a reported
amount of close to $1 billion (Lin and Winkler 2017), and merged the two
apps into one, keeping the name TikTok. With its numerous success stories and
considering the key musical element in the concept behind the service, TikTok
earned itself the status of one of the most inuential music discovery tools in
recent years.
Considering how Vine’s position was usurped, it is worth acknowledging the
vulnerability of platforms, particularly with regard to protecting their models.
Not only does the law fail to provide protection, but the copy-and-kill strategy is
also nothing new in the rivalry between social media platforms. Apart from the
previous example of Vine and Musical .ly /TikT ok, this approach has been used
on numerous other occasions and, up until now, has even been used against
The Present and Future of Music Law.indb 88 12-05-2021 16:49:52
89
Music Copyright, Creators and Fans
TikTok – for example, by the new short-form video service Instagram Reels,
launched in the United States in August 2020 (Peterson 2020).
e aforementioned examples provide a clear indication of the rise of social
media, and yet this success has come with a plethora of questions challenging
legislative discussions relating to the boundaries between creators, fans and
possible copyright infringements. e following three case insights will explore
these copyright issues in relation to popular social media platforms and their
impact on the music industry.
YouTubers and the battle for fairness
Over the last ten years, YouTubers have become a cultural global phenomenon,
also having a signicant inuence on the music industry. e name YouTubers
refers to ‘video bloggers (vloggers) who regularly post videos on their personal
YouTube channels’ (Jerslev 2016: 5233).
YouTuber, Rick Beato, has been particularly vocal on the subject of free
culture relating to creators and copyright issues. Beato is a musician and music
teacher who presents a successful series on his personal YouTube channel called
‘What Makes is Song Great?’, which currently has 1.68 million subscribers
and between 100,000 and 800,000 views per video (Beato 2020a). He regularly
posts video tutorials of himself analysing famous pop and rock songs from
the last seventy years by breaking down songs structurally and demonstrating
the music theory behind the songwriting, mainly for the benet of amateur
guitarists. Recently, however, Beato has become increasingly frustrated with
YouTube, who have been sending copyright-sharing claims, takedown claims
and demonetizing his videos on behalf of copyright owners, specically major
record labels, publishers and legacy artists. YouTube demonetisation occurs
‘when videos or channels lose their ability to earn advertising income’ (Johnson
2019). Regarding copyright-sharing claims, he has frequently expressed
dissatisfaction at how many of his YouTube videos have had copyright claims
made against them, resulting in them being taken down and/or demonetised. In
a vlog post, Beato (2020b) talks about a specic twenty-ve-second section of
one of his tutorial videos where he is demonstrating how to play the melody of
a Lennon–McCartney song on guitar. He argues that the way he uses a segment
of this song should be classied as fair use and so feels that he has been unfairly
treated.
The Present and Future of Music Law.indb 89 12-05-2021 16:49:52
90
e Present and Future of Music Law
Beato is one of many YouTubers who started their channels not only to be
creative and connect with other music fans but also as a means of generating
income. In fact, for many creators, live streaming and video content creation
has become a full-time career, with the potential for economic sustainability
and, in some cases, commercial success. However, because so many videos are
now being demonetised for copyright infringement, YouTubers feel restricted
with regard to how they can use copyrighted music as part of fair dealing, or
fair use, without being issued a takedown notice from music copyright owners
via YouTube. From an opposing viewpoint, however, there is a revenue stream
associated with uploaded content and it seems that YouTubers are simply
refusing to pay for the copyrights of creators without whom they would not have
any content. While, on one hand, YouTubers might have started the channels to
be creative, on the other hand, they are using material protected by copyright
laws. is is the reason why YouTuber disputes rarely make it to court. When
a specic video is being demonetised or blocked, the only action that a creator
can take is disputing it, but if a dispute gets rejected, the creator gets a strike, and
three strikes lead to the channel being taken down. Creators are aware that their
chances of successfully disputing a copyright claim are low.
In another example, a lawsuit was led in the United States by YouTuber DJ
Short-E, real name Erik Mishiyev, against YouTube over allegations that the
Google company did not deal properly with his counterclaims to copyright
notices led against his content, which was eventually dismissed (Cooke 2020a).
e judge ruled that YouTube could deal with the claimant’s counterclaims any
way it wanted under the video site’s terms of service. Yes, those terms of service
said YouTubers could dispute copyright claims made against their channels, but
the US district court Judge, William Alsup (cited in Van Der Sar 2020), noted
that ‘once a user submitted a counter-notice, the agreement reserved to YouTube’s
sole discretion the decision to take any further action, including whether to
restore the videos or even to send the counter-notice to the purported copyright
owner’.
e point of the new Copyright Directive is to close the value gap and to
eliminate the mismatch between the revenue generated by the platforms and
the money given to content creators. In the above-mentioned cases, both the
video content creators (YouTubers) and the creators of the musical content, or
the companies representing them, are technically co-creators of that particular
piece of content. erefore, each of them should receive a reasonable share of
the revenue generated by the platform. At present, there is a conict between
The Present and Future of Music Law.indb 90 12-05-2021 16:49:52
91
Music Copyright, Creators and Fans
creators, instead, of holding the online platform responsible for ensuring the
content is not infringing upon anyone’s rights. A clear way of resolving this
conict, as intended by Article 17, would be for user uploads to be ‘covered by
the licence the platform negotiates with rights holders’ (Article13 .or g, 2019). As
a result, YouTubers’ videos will not end up being taken down or demonetised,
but all creators who are in one way or another contributing to the content will
also be fairly rewarded.
Twitch blurs the boundaries
Twitch has had a compelling impact on the current perception of the creator–fan
relationship and, along with YouTube, has perhaps even changed the denition
of both. Despite being ocially presented as a video game streaming service, the
Amazon-owned platform is a representation of how technological innovations
have further blurred the boundaries between creators and fans, and this aects
not only the video game streamers.
In 2020, Twitch signed its rst exclusive deal with a music artist. Only a week
aer the US rapper Logic had announced his retirement from music, he signed
an exclusive deal with the platform, which he has been using for years. Despite
calling himself ‘a nerd’ who loves video games and admitting to not being a fan
of social media (Stephen 2020), Logic had a partnership with Twitch that goes
beyond simply gaming. e fact that his rst stream under the new exclusive
deal was part of the premiere of an album release clearly indicates the potential
opportunities that the platform can provide for music artists.
In addition to its potential benets to the relationship between creators and
fans, Twitch has also received public attention due to discussions over copyright
infringement claims related to unlicensed musical material, included in certain
users’ streams and uploads. Twitch does state clearly in its terms of service that
it respects intellectual property and encourages any copyright owner aected by
a potential infringement to contact the platform (Twitch 2020a). Furthermore,
since 2014, following YouTube’s example, Twitch has been using the Audible
Magic soware to detect and mute sections of uploaded video content which
contains unauthorised third-party audio. However, the signicant rise in the
number of viewers, especially during the Covid-19 pandemic, has again led to
important questions being asked about the licence for the used musical content
and to numerous takedown requests from members of the music industry
The Present and Future of Music Law.indb 91 12-05-2021 16:49:52
92
e Present and Future of Music Law
(Cooke 2020b). In response to that, in June 2020, Twitch announced that, by
automatically scanning the uploaded user-generated content, they would be
deleting any clips of live streams, including some recent ones, which contain
unlicensed music. While such measures could potentially be seen as drastic and
frustrating by content uploaders, in fact, ‘this is in line with copyright protection
of musical works’ (IP Sentinel 2020).
Similarly to the afore mentioned example from Twitch’s terms of service, user
agreements of social media platforms would normally address the consequences
of any unlicenced use of third-party content. What also needs to be acknowledged
here, however, is that the method of detection used has both its merits and
disadvantages. While providing a quick and easy way of identifying third-party
content and preventing copyright infringement, recognition soware, such as
YouTube’s Content ID and Twitch’s Audible Magic, it could still potentially target
users incorrectly, ‘with little recourse for appeal’ (Sawers 2018). Nevertheless, at
present, the use of recognition soware does seem to be an eective potential
solution and the technological advancements related to articial intelligence
(AI) suggest that recognition soware could be implemented even more widely
in the future.
In addition to policing the unauthorised use of copyrighted musical content,
Twitch has also provided solutions to its user community, a way to circumnavigate
the restrictions on using third-party audio without this leading to an infringement
claim and possible takedown of the video or the channel respectively. First, in
2015, to not limit the streamers’ creativity as a result of enforcing copyright laws,
Twitch introduced the Twitch Music Library, providing hundreds of songs which
were cleared for use on the platform. Another feature of Twitch, based entirely
on third-party musical content without infringing upon copyrights, is Twitch
Sings. e free-to-play singing game is part of the Twitch Services and has been
made possible by the negotiated licences with dierent rightsholders (Twitch
2020a). Of course, the use of the licenced material is strictly limited to the
Twitch Services, with the exception that streamers can still export their content
to YouTube but cannot monetise the content. However, the measures taken by
Twitch have set a good example of how conicts related to the use of copyright-
infringing content can not only be resolved, but perhaps even be avoided from
the outset. If the main benet of social media is that it enables users to create and
share content, without the need for having any professional expertise, it cannot
be expected of a new user to be aware of all the complexities of music law. For
a naïve debutant, it might be easy to stumble into pitfalls and end up infringing
The Present and Future of Music Law.indb 92 12-05-2021 16:49:52
93
Music Copyright, Creators and Fans
upon other creators’ copyrights, even unintentionally. erefore, Twitch’s system
can serve not only to prevent this, but also to protect rightsholders.
Twitch may have been launched as a result of the rising popularity of a
website’s gaming category, but the way in which the service has developed over
the previous years, and the inclusion of dierent new features, have taken it way
beyond the point of being a video game streaming platform, and with every
passing day, Twitch becomes more closely related to the music industry. As a
consequence of the 2020 Covid-19 pandemic, music creators and companies
have been compelled to examine new revenue opportunities to replace
compromised income streams, and the restricted movements of consumers
have supported the exploration of new experiences at home. erefore, it is no
surprise that the service is being promoted to music artists as ‘a new kind of
music venue’ where ‘musicians can unleash their creativity’ and nd new ways
to reach their audience, with Twitch now being the place where ‘fandom gets
levelled up’ (Twitch 2020b).
Artists becoming TikTok famous
When discussing how dynamically the music industry has changed within the
context of the digital domain, there are few better examples than TikTok. Even
though it has a relatively short history, with a little help from its predecessors,
the short-form video-sharing platform has quickly earned itself the reputation of
‘the machine that breaks music’ (Fowlkes 2019). ere are numerous examples
of songs becoming popular worldwide and climbing the major charts as a result
of their success on TikTok.
e case of the rapper Supa Dupa Humble is one such example: more than a
year aer the not-so-popular release of his song ‘Steppin’’, he noticed a sudden,
yet signicant, rise in the song’s views online. Going through the viewers’
comments he came across a name that he did not recognise – TikTok. e
rapper may have had no idea about the platform’s existence at the time, but that
was not an obstacle as his song became a viral hit, using only the rst een
seconds. Yet another successful case, which has already reached iconic status, is
Lil Nas X. As a twenty-year-old college dropout, he had the idea to promote his
song ‘Old Town Road’ with memes on Twitter and Instagram; however, it wasn’t
until the song went viral on TikTok that it became a global hit (Chow 2019). e
song’s record-breaking chart performance and the millions of views/streams as
The Present and Future of Music Law.indb 93 12-05-2021 16:49:52
94
e Present and Future of Music Law
well as the label bidding war to sign Lil Nas X helped to provide a comprehensive
testimony of TikTok’s potential inuence on an artist’s career.
Not surprisingly, success stories like these have inspired many artists to
pursue worldwide success through TikTok. Unlike Supa Dupa Humble, who had
not even known about the existence of the platform, two rappers, called ZaeHD
and CEO, had decided to create a song with the specic aim of going viral on
TikTok. Initially, their social media marketing strategy worked well for the song
‘All In’. However, the two rappers had not foreseen the risk of their song going
viral on TikTok through an incorrectly labelled user-uploaded sample, instead
of the ocial release. e respective hashtag was associated with tens of millions
of views, but with no mention of the song or artists’ names. Ultimately, ZaeHD
and CEO were unsuccessful in getting the song properly labelled on TikTok,
but what is especially interesting in this case is that they admitted to not being
concerned about a lack of personal recognition because ‘the song’s success is
unprecedented’ for where they came from (Chow 2019).
TikTok operates mainly on user-generated content in the form of lip-sync
videos, and so the use of third-party copyrighted material is almost unavoidable.
As a result, the ByteDance-owned company has had a number of disputes
with music copyright holders (Nicolaou 2020) over potential infringements.
TikTok has licensing agreements in place with the major labels, as well as
with independent distributors and other organisations, such as the UK Music
Publishers Association (MPA), allowing users to legally use some musical content
for their creations, although a video with a user-uploaded unlicensed musical
background is not uncommon. Nevertheless, what needs to be acknowledged
here is the fact that, as in the afore mentioned ‘All In’ case, for some artists
it is not essential to be nancially rewarded for the use of their music on the
platform. ey are simply satised with their music gaining popularity, with the
growing potential to generate income through other revenue streams, such as
fan club memberships, crowdfunding platforms, merchandise sales and other
brand endorsements deals.
Conclusions and recommendations
To summarise, the internet and other digital technologies have caused a sea
change in how music is created and consumed, making it signicantly easier
for any piece of content to be shared globally and reach an audience, with
The Present and Future of Music Law.indb 94 12-05-2021 16:49:52
95
Music Copyright, Creators and Fans
minimal interference from gatekeepers. However, while artists have always
been creators, these new opportunities have also led to a rise in creation of user-
generated content which has, in turn, changed expectations and thus caused
a split in the demographic of fans, with some joining artists and becoming
co-creators.
Copyright legislation has also had to evolve in order to remain t for purpose,
which has led to conict, uncertainty and disagreements about specic aspects of
the copyright laws and the way they are being enforced. Some music artists and
copyright owners claim that certain tools or exemptions, such as safe harbours,
are outdated and not applicable to the digital domain of the twenty-rst century,
meaning that fan-generated content is a hindrance to the artists. However, there
is potentially a new rulebook for the digital world that contradicts the traditions
from the physical one. Internet companies and other creators, of predominantly
online content, remain of the opinion that, as an industry, we are in the midst of
a digital evolution, which would not have been possible without them and, how
certain copyright owners wish to enforce the law only serves to restrict creativity.
By reviewing and analysing how the interrelationships between artists,
creators and fans have evolved over the past two decades, it can be noted that
copyright laws lack clarity and remain uncertain as to what extent they are
applicable in the context of the current digital domain. Nevertheless, the recent
developments with new directives are clearly a step forward. Furthermore, new
alternative approaches and technological innovations could potentially lead to a
fairer enforcement of copyright law. Regardless of opinions, one thing is certain:
there is no long-term benet in copyright owners and creators continuing to
pursue their toxic relationship, as they will always be ghting each other, and this
can only obstruct creativity. e future of copyright law in the digital domain
depends on everyone acknowledging the evolution of our industry and joining
forces in nding a mutually benecial working solution.
References
Alderman, J. (2002). Sonic Boom: Napster, MP3, and the New Pioneers of Music. New
York: Basic Books.
Andrews, S. (2018). ‘Viewpoint: Unlucky 13’, Music Week, 3 December, 28.
Article13. o rg (2019). e Final Version, https://www .article13 .org /article -13, accessed
12 September 2020.
The Present and Future of Music Law.indb 95 12-05-2021 16:49:53
96
e Present and Future of Music Law
96
Awbi, A. (2018). ‘IFPI slams “value gap” in new Global Music Report’, PRS for Music,
25 April, https://www .prsformusic .com /m -magazine /news /ifpi -slams -value -gap -in
-new -global -music -report/, accessed 5 September 2020.
Baskerville, D. and T. Baskerville (2017). Music Business Handbook and Career Guide,
11th edn. California: SAGE Publications.
Beato, R. (2020a). ‘Rick Beato’, YouTube, https://www .youtube .com /channel /UCJ quYO
G5EL 82sK TfH9aMA9Q, accessed 20 July 2020.
Beato, R. (2020b). ‘e Music Industry SCAM to Rip-o YouTubers (Rant)’, YouTu be, 22
February, https://www .youtube .com /watch ?v =uHh8nPj5SDY, accessed 6 April 2020.
Chow, A. (2019). ‘TikTok Is Turning New Artists into Viral Sensations. But Who
Actually Benets?’, Time, 31 May, https://time .com /5594374 /tiktok -artists -money/,
accessed 17 May 2020.
Cooke, C. (2020a). ‘YouTuber Fails in Lawsuit over YouTube’s Handling of Copyright
Notices’, CMU Daily, 17 April, https://completemusicupdate .com /article /youtuber
-fails -in -lawsuit -over -youtubes -handling -of -copyright -notices/, accessed 28
July 2020.
Cooke, C. (2020b). ‘Twitch Reports Sudden “inux” of Takedown Requests as Prolic
Users Hit out a Copyright Claims and Channel ban reats’, CMU Daily, 09
June, https://completemusicupdate .com /article /twitch -reports -sudden -inux -of
-takedown -requests -as -prolic -users -hit -out -a -copyright -claims -and -channel -ban
-threats/, accessed 23 July 2020.
Copyright, Designs and Patents Act 1988, http://www .legislation .gov .uk /ukpga /1988 /48 /
contents, accessed 07 September 2020.
David, M. (2010). Peer to Peer and the Music Industry: e Criminalization of Sharing.
London: Sage.
Europe for Creators (2019). An Open Letter to Susan Wojcicki, CEO of YouTube, 15
March, https://www .article13 .org /blog /let tert oceo ofyoutube ?categoryId =79632,
accessed 10 September 2020.
Fowlkes, K. (2019). ‘TikTok: e Good, e Bad, e Paradox for the Song Creator’,
Medium, 23 October, https://medium .com /the -courtroom /tiktok -the -good -the -bad
-the -paradox -for -the -song -creator -47855be3b5d8, accessed 05 May 2020.
Gaines, J. (1991). Contested Culture: e Image, the Voice and e Law. Chapel Hill:
University of North Carolina Press.
Galuszka, P. (2014). ‘New Economy of Fandom’, Popular Music & Society, 38, no. 1:
25–43.
Garner, G. (2019). ‘Judgement Day: A Timeline of the Article 13 Debate’, Music Week,
26 March, https://www .musicweek .com /digital /read /judgement -day -a -timeline -of
-the -article -13 -debate /075736, accessed 05 September 2020.
Glicksman, J. (2020). ‘TikTok Continues to Launch Breakout Hits, But Can It Sustain
An Artist’s Career?’, Billboard, 22 June, https://www .billboard .com /articles /business
/9404479 /tiktok -one -hit -wonders -career, accessed 31 August 2020.
The Present and Future of Music Law.indb 96 12-05-2021 16:49:53
97
Music Copyright, Creators and Fans
97
Gordon, S. (2015). e Future of the Music Business, 4th edn. Milwaukee: Hal Leonard
Books.
Hardy, P. (2012). Download! How the Internet Transformed the Record Business. London:
Omnibus Press.
Hopkins, J. (2006). ‘Surprise! ere’s a third YouTube Co-founder’, USA Today,
11 October, http://usatoday30 .usatoday .com /tech /news /2006 -10 -11 -youtube -karim
_x .htm, accessed 09 July 2020.
IP Sentinel (2020). Twitch and Copyright Infringement Claims, http://www
.iprhelpdesk .eu /blog /twitch -and -copyright -infringement -claims, accessed
10 September 2020.
Jerslev, A. (2016). ‘In the Time of the Microcelebrity: Celebrication and the YouTuber
Zoella’, International Journal of Communication, 10: 5233–51.
Joglekar, A. (2018). ‘Copyright vs Copyle – What, Why, How’, Medium, https://
medium .com/ @aayushjoglekar /copyright -vs -copyle -what -why -how
-550b1639470a, accessed 21 July 2020.
Johnson, J. (2019). ‘How to Survive YouTube Demonetization and Continue Making
Money from Your Channel’, Uscreen, 08 August, https://www .uscreen .tv /blog /
how -to -survive -youtube -demonetization/#:~ :text =YouTube %20demonetization
%20is %20when %20videos ,changes %20in %20YouTube's%20advertising%20
algorithm.&text=Videos%20are%20removed%20from%20their%20Account%20
Monetization%20program, accessed 20 September 2020.
Knopper, S. (2009). Appetite for Self-Destruction: e Spectacular Crash of the Record
Industry in the Digital Age. London: Simon & Schuster.
Lessig, L. (2005). ‘CC in Review: Lawrence Lessig on How It All Began’, Creative
Commons, https://creativecommons .org /2005 /10 /12 /cci nrev iewl awre ncel essi gonh
owit allbegan/, accessed 23 September 2020.
Leyshon, A. (2014). Reformatted: Code, Network and the Transformation of the Music
Industry. Oxford: Oxford University Press.
Liebowitz, S. J. and R. Watt (2006). ‘How to Best Ensure Remuneration for Creators in
the Market for Music? Copyright and Its Alternatives’, Journal of Economic Surveys,
20, no. 4: 513–45.
Lin, L. and R. Winkler (2017). ‘Social-Media App Musical . ly Is Acquired for as Much
as $1 Billion’, Wall Street Journal, 09 November, https://www .wsj .com /articles /
lip -syncing -app -musical -ly -is -acquired -for -as -much -as -1 -billion -1510278123,
accessed 28 July 2020.
Madiega, T. (2020). Reform of the EU Liability Regime for Online Intermediaries:
Background on the Forthcoming Digital Services Act. Brussels: European
Parliamentary Research Service.
Mercuri, M. (2019). ‘How TikTok Inuenced Music Discovery In 2019’, Forbes,
23 December, https://www .forbes .com /sites /monicamercuri /2019 /12 /23 /how -tiktok
-inuenced -music -discovery -in -2019/ #28f29608321b, accessed 31 August 2020.
The Present and Future of Music Law.indb 97 12-05-2021 16:49:53
98
e Present and Future of Music Law
98
Morris, J. W. (2013). ‘Artists as Entrepreneurs, Fans as Workers’, Popular Music &
Society, 37, no. 3: 273–90.
Music Ally (2018). ‘Fan Basis: Subcontracting Marketing to Your Audience’, Music Ally
– Sandbox, 197: 1.
Mustonen, M. (2003). ‘Copyle – the Economics of Linux and Other Open Source
Soware’, Information Economics & Policy, 15, no. 1: 99–121.
Negus K., J. Street and A. Behr (2017). ‘Copying, Copyright and Originality: Imitation,
Transformation and Popular Musicians’, European Journal of Cultural Studies, 20, no.
4: 363–80.
Nicolaou, A. (2020). ‘Music Companies reaten to sue TikTok over Copyright’,
Financial Times, 04 April, https://www . .com /content /1b3b78ea -32a3 -4237 -8b79
-3595820eeb63, accessed 05 May 2020.
Organisation for Economic Co-operation and Development (2007). Participative Web:
User-created Content, 12 April.
Page, W. (2020). ‘Is the Music Copyright Business Worth More than Ever?’, Billboard,
https://static .billboard .com /les /2020 /02 /Is -e- Music -Copyright -Business -Worth
-More -an -Ever -1582909 901 .pdf, accessed 7 July 2020.
Paine, A. (2018). ‘Spotify has Everything: Piracy Drops as Streaming Wins over Illegal
Downloaders’, Music Week, 2 August, http://www .musicweek .com /digital /read /
spotify -has -everything -piracy -drops -as -streaming -wins -over -illegal -downloaders
/073373, accessed 10 September 2020.
Paine, A. (2019). ‘MEPs Back Copyright Directive, Including Article 13’, Music Week,
26 March, https://www .musicweek .com /digital /read /meps -back -copyright -directive
-including -article -13 /075735, accessed 12 September 2020.
Pearson, R. (2010). ‘Fandom in the Digital Era’, e International Journal of Media &
Culture, 8, no. 1: 84–95.
Peterson, T. (2020). ‘ere Is a Battle Going on: TikTok-Instagram Rivalry for Creators
Heating Up’, Digiday, 03 August. Available online: https://digiday .com /future -of
-tv /there -is -a -battle -going -on -tiktok -instagram -rivalry -for -creators -heating -up/,
accessed 12 September 2020.
Philips, T. and J. Street (2015). ‘Copyright and Musicians at the Digital Margins’, Media,
Culture & Society, 37 (3): 342–58.
Roma, P. and D. Aloini (2019). ‘How Does Brand-Related User-Generated Content
Dier Across Social Media? Evidence Reloaded’, Journal of Business, 96: 322–39.
Rostama, G. (2015). ‘Remix Culture and Amateur Creativity’, WIPO, https://www .wipo
.int /wipo _magazine /en /2015 /03 /article _0006 .html, accessed 23 July 2020.
Sawers, P. (2018). ‘YouTube: We’ve Invested $100 million in Content ID and paid over
$3 Billion to Rightsholders’, VentureBeat, 07 November, https://venturebeat .com
/2018 /11 /07 /youtube -weve -invested -100 -million -in -content -id -and -paid -over -3
-billion -to -rightsholders/, accessed 05 September 2020.
Smartt, U. (2017). Media & Entertainment Law, 3rd edn. London: Routledge.
The Present and Future of Music Law.indb 98 12-05-2021 16:49:53
99
Music Copyright, Creators and Fans
Souppouris, A. (2013). ‘Vine Is Now the Number One Free App in the US App Store’,
e Verge, 09 April, https://www .theverge .com /2013 /4 /9 /4204396 /vine -number -one
-us -app -store -free -apps -chart, accessed 10 July 2020.
Stephen, B. (2020). ‘Logic Signs to Twitch, Exclusively’, e Verge, 20 July, https://www
.theverge .com /2020 /7 /20 /21327589 /logic -twitch -signing -deal -exclusive -partnership,
accessed 23 July 2020.
Tschmuck, P. (2012). Creativity and Innovation in the Music Industry. Berlin: Springer-
Verlag.
Twitch (2020a). ‘Terms of Service’, Tw itch, https://www .twitch .tv /p /legal /terms -of
-service/, accessed 29 July 2020.
Twitch (2020b). ‘e Stage Is Yours’, Tw it ch, https://www .twitch .tv /p /en /artists/,
accessed 29 July 2020.
Van Der Sar, E. (2020). ‘YouTube Fights O Lawsuit Over “Retaliatory” Copyright
Strikes’, Torrent Freak, 15 April, https://torrentfreak .com /youtube -ghts -o -lawsuit
-over -retaliatory -copyright -strikes -200415/, accessed 28 July 2020.
Ward-Ure, L. (2018). ‘Copyright Uncovered: Fair Use v Fair Dealing’, DACS, https://
www .dacs .org .uk /latest -news /copyright -uncovered- %E2 %80 %93 -q3 -2018 -fair -use -v
-fair -deal ?category =For +Artists &title =N, accessed 28 July 2020.
Wikstrom, P. (2009). e Music Industry. Cambridge: Polity.
Wilson, Z. (2020). ‘How TikTok became the New Music Tipsheet for Radio
Programmers’, e Music Network, 11 May, https://themusicnetwork .com /tiktok
-music -2020 -tipsheet/, accessed 30 August 2020.
The Present and Future of Music Law.indb 99 12-05-2021 16:49:53
