Thank goodness that COSON the sole Collective Society for musical works has finally been approved by the Nigerian Copyright Commission (NCC) under powers granted in Section 39 of the Copyright Act, 1988.
The Act in Section 39 defines a Collective Society as “an association of copyright owners which has as its principal objectives the negotiating and granting of licenses, collecting and distributing of royalties in respect of copyright works”. The granting of licenses in this definition presupposes that the collective society has already been granted a license by the owner of the musical work and will exercise the copyright in the interest and on behalf of the owner. The need for such an organization has become evident from the challenges encountered in the individual management of these rights. An author of a musical work is not materially capable of monitoring all uses of his works, he cannot for instance contact every single radio or television station to negotiate licenses and remuneration for using his works. In the same vein, it would be an onerous task for a radio station to seek specific permission from every owner of musical works for the right to broadcast or communicate the work to the public which is embedded in Section 6 of the Act and it is for the exclusive enjoyment of the owner. If this were to be the case, then thousands of the owners of musical works would have to be approached for authorizations. The very impracticability of managing these rights both for the owners and for the users of these musical works leaves a vacuum which needs to be filed by the collective society.
Enter COSON which has been accusing Wazobia & Cool FM radio stations of infringing Section 6 of the Act by broadcasting musical works to the public without the authority of the owner or COSON. In the words of Chief Tony Okoroji, the Chairman of COSON, “Other users of music across the country are watching to see how the matter is resolved. It will to a large extent determine what the rights of Nigerian artistes are in their country. It will also determine whether the copyright law has any bite…We are aware that the owners of Cool and Wazobia FM have been running from office to office in Abuja. They are looking for ways to use the power of government to intimidate COSON instead of talking to us [emphasis mine]” The emphasized is exactly my point, why should COSON be waiting to be talked to? Is COSON not aware of the full import of Section 16 of the Act which provides:
“subject to this Act, infringement of copyright shall be actionable at the [instance] of the owner, assignee or an exclusive licensee of the copyright…”
Translated, this provision means that an assignee or an exclusive licensee of copyright has a legal right to sue against copyright infringement, in other words COSON in performing its functions as a collective society, it has the legal status or locus standi to initiate an action in court in exercise or defence of the rights vested in it. This was the opinion of the Court of Appeal in Compact Disc Technology & Ors v. Musical Copyright Society (MCSN) in Appeal No. CA/L787 2008 where the court held that the respondent MCSN:
“…lacks the legal status, or locus standi, to initiate an action in court in exercise or defence of the rights vested in it since it was performing the functions of a collecting society without the prior approval of Nigerian Copyright Commission.”
In concluding, since COSON has been given the breath of life through the instrument of the Act and has been accordingly approved by the NCC under Section 39, then it is competent to maintain an action for Copyright infringement against Cool & Wazobia FM or any other person. It is instructive to note that the Motion Picture Association of America (MPAA) a collective society in the American movie sector on April 4th, 2011 sued Zediva.com an online move rental store for copyright infringement in violating the studio’s (owners of the right to distribute the movies) exclusive rights of distribution.
PS: Olanrewaju Dabiri popularly known Nigerian Hip hop act known as eLDee in his article “The politics of our time” published on Sahara Reporters disassociated himself from the musical concert Youths rising up for Goodluck Ebele Jonathan supposedly featuring him D’banj and a host of other Nigerian artistes. A true man of integrity he is.
Thursday, April 7, 2011
Thursday, April 29, 2010
PROTECTING RIGHTS IN MUSICAL WORKS: TECHNOLOGICAL PROTECTION MEASURE (TPMs) VERSUS LEGAL ENFORCEMENT MEASURES (LEGs)
The World Intellectual Property day (26th April) has come and gone. Nigeria been a prominent member of the World Intellectual Property Organization (WIPO) took part in this annual event which was themed “Innovation-Linking the World”. In the words of the Nigerian Attorney General of the Federation (AGF) “Innovation provides solutions to identified problems but also creates new problems. While it is true that the law may never be able to catch up with or pre-empt all the hazards of technology, experience has shown that the solution is in constant review of the law to meet emerging challenges.”
If the truth be told this statement coming from the AGF will form the background of today’s piece. Musical works as we all know is borne out of creativity, one of the main challenges facing creativity in this age of “Innovation” is the issue of (digital) piracy. This problem of piracy has become so rampant in developing nations like Nigeria (maybe because of its lucrative nature). It goes without saying that losses to the rights holders are enormous. To curb this menace, the intellectual property system devised two approaches that may be needed in international markets to protect the rights in musical works.
Technological Protection Measures (TPMs): According to Lessig (1999, p.49) code can, and increasingly will, displace law as the primary defence of intellectual property law in cyber space. The legal foundation for TPMs often referred to as digital rights management (DRM) can be traced to s.11 of the WIPO Copyright Treaty (WCT)and s. 18 of the WIPO Performances and Phonograms Treaty (WPPT), (both referred to as the WIPO internet treaty) which provides for what is now known as the “anti-circumvention provision”.
This provision has the effect of penalizing the circumvention of any effective technological measures put in place by rights holders (of musical works) to restrict the unlawful and unauthorized acts use in protecting musical content and to provide legal remedies against the commercial dealings which are capable of anti-circumvention. At its core, DRM technologies allow musical rights holders to define a set of rules attached to their work in digital format that control consumer access, use and manipulation of the musical work.
This technology is in response to challenges presented by the current state of our digital technologies where musical works can be reproduced identically and distributed across computer networks without compensation to the rights holders. DRM technologies has come under attack in recent times as having the effect of restricting “fair use”, granted under our copyright laws, since its primary objective is to prohibit the copy and access of musical works. According to Stefik (1999, p.96) “One of the concerns raised about [DRM] systems is that they might block consumers’ access to works they are entitled to use on a fair use basis. Because a consumer could not extract a portion of a digital work on a [DRM] system, he or she would not have the opportunity to create the work that would occasion the fair-use defence”
Interoperability has been another challenge facing the deployment of DRM technologies, as in the case of musical content from iTunes platform been restricted to play only on Apple’s iPod (complaint) devices. The inability of Apple’s DRM solution to interoperate across multiple platforms has presented consumer protection and competition/anti-trust challenges.
The consumers Ombudsman in Norway has ruled that the songs encoded with Apples’s FairPlay technology cannot be played on any other music device other than the iPod which is in contravention of Norway’s Laws. To remedy the problem of interoperability, the open source model has been suggested as this model will guarantee interoperability across a myriad of platforms.
Legal Enforcement Measures (LEMs): Another way of dealing with piracy in musical works is through legal remedies provided under copyright and trademark laws as pirated works constitute infringement under both laws.
An important legal tool for dealing with the infringement of IP is the “Anton Piller” order. This is a court order that provides the right to search premises and seize evidence without prior warning. This order is very useful in preventing the destruction of goods or articles in possession of the defendant and which the plaintiff claims infringes his copyright, trademark or patent. The order is named after the case of Anto Piller KG v Manufacturing Processess Limited [1976] Ch 55. To succeed on an Anton Piller application, the plaintiff/applicant must show (to the court) that the property is in the defendant’s possession, that the defendant is likely to destroy it (if he were put on notice of the application for the order) and that the damage occasioned by this infringement is very serious to the applicant.
The path to follow
Whichever path, rights holders may decide to follow, it is heart-warming to know that both measures of enforcing rights in musical works complement each other. The downside may be that in TPMs, fair-use and consumer protection issues may arise while in LEMs, swift processes for customs/border seizures of pirated musical works may suffice, while it may be more difficult to successfully prosecute those involved in criminal piracy, civil remedies may also not be sufficient as it is often a slow path and the amount of monetary compensation may not be enough.
Whatever the case may be, let’s keep celebrating and rewarding creativity. It is important that rights holders maximize the benefits from their works. In this vein, I will agree with the Nigerian pidgin English adage that says “No work, no pay”!
PS: Do you know about the tale of two dogs, I mean Lucky and Flo (two Labrador retrievers) trained by the Motion Picture Association of America (MPAA) in sniffing out pirated media. On their second test run in Malaysia, a bounty was placed on their head by the Malaysian piracy cartel. I guess it’s a dog eat dog world.
If the truth be told this statement coming from the AGF will form the background of today’s piece. Musical works as we all know is borne out of creativity, one of the main challenges facing creativity in this age of “Innovation” is the issue of (digital) piracy. This problem of piracy has become so rampant in developing nations like Nigeria (maybe because of its lucrative nature). It goes without saying that losses to the rights holders are enormous. To curb this menace, the intellectual property system devised two approaches that may be needed in international markets to protect the rights in musical works.
Technological Protection Measures (TPMs): According to Lessig (1999, p.49) code can, and increasingly will, displace law as the primary defence of intellectual property law in cyber space. The legal foundation for TPMs often referred to as digital rights management (DRM) can be traced to s.11 of the WIPO Copyright Treaty (WCT)and s. 18 of the WIPO Performances and Phonograms Treaty (WPPT), (both referred to as the WIPO internet treaty) which provides for what is now known as the “anti-circumvention provision”.
This provision has the effect of penalizing the circumvention of any effective technological measures put in place by rights holders (of musical works) to restrict the unlawful and unauthorized acts use in protecting musical content and to provide legal remedies against the commercial dealings which are capable of anti-circumvention. At its core, DRM technologies allow musical rights holders to define a set of rules attached to their work in digital format that control consumer access, use and manipulation of the musical work.
This technology is in response to challenges presented by the current state of our digital technologies where musical works can be reproduced identically and distributed across computer networks without compensation to the rights holders. DRM technologies has come under attack in recent times as having the effect of restricting “fair use”, granted under our copyright laws, since its primary objective is to prohibit the copy and access of musical works. According to Stefik (1999, p.96) “One of the concerns raised about [DRM] systems is that they might block consumers’ access to works they are entitled to use on a fair use basis. Because a consumer could not extract a portion of a digital work on a [DRM] system, he or she would not have the opportunity to create the work that would occasion the fair-use defence”
Interoperability has been another challenge facing the deployment of DRM technologies, as in the case of musical content from iTunes platform been restricted to play only on Apple’s iPod (complaint) devices. The inability of Apple’s DRM solution to interoperate across multiple platforms has presented consumer protection and competition/anti-trust challenges.
The consumers Ombudsman in Norway has ruled that the songs encoded with Apples’s FairPlay technology cannot be played on any other music device other than the iPod which is in contravention of Norway’s Laws. To remedy the problem of interoperability, the open source model has been suggested as this model will guarantee interoperability across a myriad of platforms.
Legal Enforcement Measures (LEMs): Another way of dealing with piracy in musical works is through legal remedies provided under copyright and trademark laws as pirated works constitute infringement under both laws.
An important legal tool for dealing with the infringement of IP is the “Anton Piller” order. This is a court order that provides the right to search premises and seize evidence without prior warning. This order is very useful in preventing the destruction of goods or articles in possession of the defendant and which the plaintiff claims infringes his copyright, trademark or patent. The order is named after the case of Anto Piller KG v Manufacturing Processess Limited [1976] Ch 55. To succeed on an Anton Piller application, the plaintiff/applicant must show (to the court) that the property is in the defendant’s possession, that the defendant is likely to destroy it (if he were put on notice of the application for the order) and that the damage occasioned by this infringement is very serious to the applicant.
The path to follow
Whichever path, rights holders may decide to follow, it is heart-warming to know that both measures of enforcing rights in musical works complement each other. The downside may be that in TPMs, fair-use and consumer protection issues may arise while in LEMs, swift processes for customs/border seizures of pirated musical works may suffice, while it may be more difficult to successfully prosecute those involved in criminal piracy, civil remedies may also not be sufficient as it is often a slow path and the amount of monetary compensation may not be enough.
Whatever the case may be, let’s keep celebrating and rewarding creativity. It is important that rights holders maximize the benefits from their works. In this vein, I will agree with the Nigerian pidgin English adage that says “No work, no pay”!
PS: Do you know about the tale of two dogs, I mean Lucky and Flo (two Labrador retrievers) trained by the Motion Picture Association of America (MPAA) in sniffing out pirated media. On their second test run in Malaysia, a bounty was placed on their head by the Malaysian piracy cartel. I guess it’s a dog eat dog world.
Saturday, April 17, 2010
Feeling groovy – Music therapy
The effect of music on the human spirit has been known for centuries. Its power to heal afflictions of mind and body, however, are only now becoming clearer. Journalist Jo Bowman reports that the commercial possibilities of new styles of music therapy raise complex IP issues.
It does not take an expert in either music or the mind to recommend a hot bath and some Pachelbel to help cure a mild case of stress. But a growing body of research being done around the world suggests there is a far stronger link than was previously thought between mental and physical health, and music.
Music therapy that encourages patients to express themselves by joining in and playing musical instruments has had well-documented success with people suffering from dementia, adults and children with learning difficulties, and in palliative care.
But the notion that simply listening to certain kinds of music can also have a significant effect not only on mood but on medically verifiable health is one that is generating increasing interest. There are those who suggest that in the treatment of some kinds of illness, a dose of the right music avoids the need for drug treatment altogether.
The power to heal is also the power to make money, and therapists, musicians and technicians succeeding in this field are not leaving the complex subject of intellectual property (IP) rights to chance.
Twice a day, after meals
Ms. Vera Brandes, a respected Austrian music producer, composer and academic, describes herself as the first “musical pharmacologist.” The company she co-founded, Sanoson, plans to launch a prescription-only course of music therapy she believes is so powerful in the treatment of disorders such as depression, that doctors may see it as a real alternative to drugs. The treatment will be available initially in Austria but later in other European countries and in the U.S. Patients will be given specially produced listening devices and a headset programmed with selected pieces of music. Their prescription tells them when to listen, and how often.
Director of the research program in music and medicine at the Paracelsus Private Medical University in Salzburg, Ms. Brandes says the music prescribed was composed by her and her team and is based on research on the neurological effects of different musical stimuli. The fact that patients tend to like the therapy makes them more likely to stick with it, she says – unlike psychotherapy, which has a high drop-out rate. “It does involve time,” she says. “Patients have to have at least half an hour a day when they can do this and nothing else, so it’s more time-consuming than taking a pill, but not more time-consuming than seeing a psychiatrist.”
Listening therapy is also at the heart of the launch in the U.S. this year of an Internet-based service by music research company Sourcetone. Director of marketing Luis Araten-Castilla says the company has been studying the effects of music on the mind for five years, working with scientists at Harvard Medical School.
The web service – currently available only in the U.S., although the company has global aspirations – allows users to listen to streamed music of their choice, rather like having their own iTunes playlist. None of the music is specially composed or recorded but, unlike a regular playlist based on album or artist, users choose the emotion they want to feel – calm, for instance – and can combine that with certain genres of music – so calm, plus jazz or hip-hop – and a playlist is created for them. “The music we play has a deep emotive quality and is selected for the kind of mood-altering experience we want to deliver,” says Mr. Araten-Castilla. He says such targeted listening can benefit those suffering from anxiety, depression, high blood pressure and memory loss.
Tuning in
In the Internet age, IP rights relating to music can be a contentious issue. Add to that specific ways of using or creating musical works – and special listening devices – and it becomes even more complicated.
Even using music that is no longer copyrighted is not without potential headaches. Professor Ruth Soetendorp, joint director of the Centre for Intellectual Property Policy & Management at Bournemouth University in the U.K., explains that using Beethoven’s Fifth in music therapy won’t infringe on the composer’s copyright, “but if it’s the Berlin Philharmonic’s recording from last year, you need permission for that.”
In sessions where patients change an existing musical work in some way, permission needs to have been granted by the copyright holder of that music. If it is Mozart, you are in the clear as it is no longer copyright protected. If it is Oasis, you need to ask first or risk breaching copyright.
Creating original pieces of music for therapeutic listening gets around the copyright issue, provided the composers commissioned to write the music assign copyright to the therapy company involved or agree to license the use of the music.
At Sanoson, Ms. Brandes and her team are going beyond copyright protection for the pieces of music they are inviting doctors to prescribe – they are seeking patents in the U.S. and Europe to protect the service they are offering.
“Listening to music to help people with depression is not new … but the whole model is completely new – how it’s presented, and all the elements that are included,” Ms. Brandes says. The patent applications, she says, cover the music, the therapy – called Music-Focused Auditory Therapy – and the listening device itself, which has a memory function allowing doctors to check whether patients are taking their musical medicine as prescribed. The device, which is rented to patients rather than sold, has other qualities not available in commercial music players, says Ms. Brandes, with a broader frequency range and different sound quality.
Fair play
Prof. Soetendorp says protecting new forms of music therapy raises issues that apply to other forms of therapy and personal services. “You can’t patent a method of treatment,” she says. “You can’t patent ideas, and you can’t patent therapies. If you invent a wooden stick that could be used in a course of Swedish massage to give a deeper, more effective massage, that would be patentable. The notion of Swedish massage in itself is not patentable.” Not in Europe at any rate, though the laws on patents in the U.S. are far more flexible, even if only enforceable in the U.S.
The name of a type of therapy could, however, be protected by a trademark. Prof. Soetendorp says the creator of music that achieves a particular effect would be wise to ensure copyright on the music is widely documented, thus allowing the brand of the organization creating or delivering it – that could be protected by a trademark – to be promoted.
As a user of existing music rather than creator of its own, Sourcetone faces a different range of IP issues, not unlike those affecting online radio stations. The company pays royalties to artists whose music it uses, as do radio stations. Users listen to the music free of charge, and the site is supported by advertising. Mr. Araten-Castilla says royalty payments for online streaming are much higher – as much as double – per play in the U.S. than for terrestrial radio stations playing the same piece of music.
Unlike some popular web radio services that are fully interactive, Sourcetone’s streaming is designed with built-in copyright safeguards so that listeners cannot record the tracks and cannot rewind or select a specific track, click and play. What they can do is skip forward if they do not like a particular piece of music. While the music itself is not Sourcetone’s to protect, the software used to select and deliver the music – called Music Classification System Technology or MCST – is, and is patented. MCST, which takes into account rankings of how the music makes listeners feel, also analyzes features of music such as rhythm, the number of beats per minute and harmonies, to reach an “understanding” of the effect music may have on people.
The complexity of dealing with recording artists’ copyright in multiple countries, as well as the task of protecting their own IP, is hampering Sourcetone’s global rollout, Mr. Araten-Castilla says. The company is therefore looking at working with local partners in other markets to help it expand beyond the U.S.
Name that song
Meanwhile, in the U.K., where music therapy focuses primarily on encouraging patients to participate in creating music, there is a completely different set of IP rights to consider. The first, unique to the U.K. though soon to be introduced in Austria, is the legal restriction on who can be described as a “music therapist.” That title is protected by the Health Professions Council, whose minimum standards for registered practitioners cover the level of patient care provided and the standard of training and education required. Improper use of the title music therapist – or titles such as physiotherapist, dietician, art psychotherapist and radiographer – can attract a fine of up to £5,000.
“Music therapists in the U.K. have never said ‘we own music,’ but what we have been successful at is helping music to be used positively, safely and successfully in contexts where people can be very vulnerable, for instance if patients are non-verbal,” says Mr. Stephen Sandford, Chair of the Association of Professional Music Therapists U.K. “There are different schools you can train in to be a music therapist, but the registration means that no matter what the flavor of the therapy is, you know that your therapist will meet recognized standards of proficiency which will protect the public.”
The law covers only the term music therapist, however, and not “music therapy” – a point tested when U.K. station Radio 4 launched a comedy show called “Music Therapy” which it was deemed did not break the rules and was allowed to continue.
Sounds like a business plan
In the case of patients taking part in creating music, it is always possible that a session will originate a musical masterpiece with commercial potential. If that work is guided by a music therapist and involves a room full of patients, who, then, would own what?
Mr. Sandford says that in the British National Health Service (NHS), music therapy usually focuses on musical improvisation by patient and therapist, and can include composition and song writing techniques. Musical works created during therapy are treated as part of a patient’s medical records, which patients have the right to access. And, as in the case of saleable works created during art therapy, patients have the right to make money from their music.
Prof. Soetendorp says that, generally, copyright ownership lies with whoever creates and contributes to a piece of music. If a therapist leads a session but without actually making the music that goes on to become a chart-topper, they would not get a share of the royalties. “[Being an] inspiration is not really part of creation,” she says. “You get this issue in universities where researchers are working on things that perhaps lead to a patent. What’s the input of the professor; is there a joint patent?”
If a patient and instructor produce a work of music together then it is protected by a joint copyright if they have both had input, says Prof. Soetendorp. The law does not assign copyright to each contributor according to how much they have put into it. So, even if one does 90 percent of the work, the copyright is split down the middle. If the music was created by 10 people in a group therapy session and they all make a contribution, the copyright is split equally among them. Unless, that is, patients assigned copyright to the therapist or to their company, which then becomes a question of medical ethics rather than IP.
Culled from WIPO Magazine 5/2009
PS
“I'll be your prescription
Come and take a dose of me
Once you get a dose of me
You'll think that I'm your medicine”
The above lines form part of the chorus from the song “Medicine” performed by American Rap Artiste Plies and R& B singer Keri Hilson. The question then becomes is music now therapeutic or therapy is now musical? If you ask me, I would say its good music though.
It does not take an expert in either music or the mind to recommend a hot bath and some Pachelbel to help cure a mild case of stress. But a growing body of research being done around the world suggests there is a far stronger link than was previously thought between mental and physical health, and music.
Music therapy that encourages patients to express themselves by joining in and playing musical instruments has had well-documented success with people suffering from dementia, adults and children with learning difficulties, and in palliative care.
But the notion that simply listening to certain kinds of music can also have a significant effect not only on mood but on medically verifiable health is one that is generating increasing interest. There are those who suggest that in the treatment of some kinds of illness, a dose of the right music avoids the need for drug treatment altogether.
The power to heal is also the power to make money, and therapists, musicians and technicians succeeding in this field are not leaving the complex subject of intellectual property (IP) rights to chance.
Twice a day, after meals
Ms. Vera Brandes, a respected Austrian music producer, composer and academic, describes herself as the first “musical pharmacologist.” The company she co-founded, Sanoson, plans to launch a prescription-only course of music therapy she believes is so powerful in the treatment of disorders such as depression, that doctors may see it as a real alternative to drugs. The treatment will be available initially in Austria but later in other European countries and in the U.S. Patients will be given specially produced listening devices and a headset programmed with selected pieces of music. Their prescription tells them when to listen, and how often.
Director of the research program in music and medicine at the Paracelsus Private Medical University in Salzburg, Ms. Brandes says the music prescribed was composed by her and her team and is based on research on the neurological effects of different musical stimuli. The fact that patients tend to like the therapy makes them more likely to stick with it, she says – unlike psychotherapy, which has a high drop-out rate. “It does involve time,” she says. “Patients have to have at least half an hour a day when they can do this and nothing else, so it’s more time-consuming than taking a pill, but not more time-consuming than seeing a psychiatrist.”
Listening therapy is also at the heart of the launch in the U.S. this year of an Internet-based service by music research company Sourcetone. Director of marketing Luis Araten-Castilla says the company has been studying the effects of music on the mind for five years, working with scientists at Harvard Medical School.
The web service – currently available only in the U.S., although the company has global aspirations – allows users to listen to streamed music of their choice, rather like having their own iTunes playlist. None of the music is specially composed or recorded but, unlike a regular playlist based on album or artist, users choose the emotion they want to feel – calm, for instance – and can combine that with certain genres of music – so calm, plus jazz or hip-hop – and a playlist is created for them. “The music we play has a deep emotive quality and is selected for the kind of mood-altering experience we want to deliver,” says Mr. Araten-Castilla. He says such targeted listening can benefit those suffering from anxiety, depression, high blood pressure and memory loss.
Tuning in
In the Internet age, IP rights relating to music can be a contentious issue. Add to that specific ways of using or creating musical works – and special listening devices – and it becomes even more complicated.
Even using music that is no longer copyrighted is not without potential headaches. Professor Ruth Soetendorp, joint director of the Centre for Intellectual Property Policy & Management at Bournemouth University in the U.K., explains that using Beethoven’s Fifth in music therapy won’t infringe on the composer’s copyright, “but if it’s the Berlin Philharmonic’s recording from last year, you need permission for that.”
In sessions where patients change an existing musical work in some way, permission needs to have been granted by the copyright holder of that music. If it is Mozart, you are in the clear as it is no longer copyright protected. If it is Oasis, you need to ask first or risk breaching copyright.
Creating original pieces of music for therapeutic listening gets around the copyright issue, provided the composers commissioned to write the music assign copyright to the therapy company involved or agree to license the use of the music.
At Sanoson, Ms. Brandes and her team are going beyond copyright protection for the pieces of music they are inviting doctors to prescribe – they are seeking patents in the U.S. and Europe to protect the service they are offering.
“Listening to music to help people with depression is not new … but the whole model is completely new – how it’s presented, and all the elements that are included,” Ms. Brandes says. The patent applications, she says, cover the music, the therapy – called Music-Focused Auditory Therapy – and the listening device itself, which has a memory function allowing doctors to check whether patients are taking their musical medicine as prescribed. The device, which is rented to patients rather than sold, has other qualities not available in commercial music players, says Ms. Brandes, with a broader frequency range and different sound quality.
Fair play
Prof. Soetendorp says protecting new forms of music therapy raises issues that apply to other forms of therapy and personal services. “You can’t patent a method of treatment,” she says. “You can’t patent ideas, and you can’t patent therapies. If you invent a wooden stick that could be used in a course of Swedish massage to give a deeper, more effective massage, that would be patentable. The notion of Swedish massage in itself is not patentable.” Not in Europe at any rate, though the laws on patents in the U.S. are far more flexible, even if only enforceable in the U.S.
The name of a type of therapy could, however, be protected by a trademark. Prof. Soetendorp says the creator of music that achieves a particular effect would be wise to ensure copyright on the music is widely documented, thus allowing the brand of the organization creating or delivering it – that could be protected by a trademark – to be promoted.
As a user of existing music rather than creator of its own, Sourcetone faces a different range of IP issues, not unlike those affecting online radio stations. The company pays royalties to artists whose music it uses, as do radio stations. Users listen to the music free of charge, and the site is supported by advertising. Mr. Araten-Castilla says royalty payments for online streaming are much higher – as much as double – per play in the U.S. than for terrestrial radio stations playing the same piece of music.
Unlike some popular web radio services that are fully interactive, Sourcetone’s streaming is designed with built-in copyright safeguards so that listeners cannot record the tracks and cannot rewind or select a specific track, click and play. What they can do is skip forward if they do not like a particular piece of music. While the music itself is not Sourcetone’s to protect, the software used to select and deliver the music – called Music Classification System Technology or MCST – is, and is patented. MCST, which takes into account rankings of how the music makes listeners feel, also analyzes features of music such as rhythm, the number of beats per minute and harmonies, to reach an “understanding” of the effect music may have on people.
The complexity of dealing with recording artists’ copyright in multiple countries, as well as the task of protecting their own IP, is hampering Sourcetone’s global rollout, Mr. Araten-Castilla says. The company is therefore looking at working with local partners in other markets to help it expand beyond the U.S.
Name that song
Meanwhile, in the U.K., where music therapy focuses primarily on encouraging patients to participate in creating music, there is a completely different set of IP rights to consider. The first, unique to the U.K. though soon to be introduced in Austria, is the legal restriction on who can be described as a “music therapist.” That title is protected by the Health Professions Council, whose minimum standards for registered practitioners cover the level of patient care provided and the standard of training and education required. Improper use of the title music therapist – or titles such as physiotherapist, dietician, art psychotherapist and radiographer – can attract a fine of up to £5,000.
“Music therapists in the U.K. have never said ‘we own music,’ but what we have been successful at is helping music to be used positively, safely and successfully in contexts where people can be very vulnerable, for instance if patients are non-verbal,” says Mr. Stephen Sandford, Chair of the Association of Professional Music Therapists U.K. “There are different schools you can train in to be a music therapist, but the registration means that no matter what the flavor of the therapy is, you know that your therapist will meet recognized standards of proficiency which will protect the public.”
The law covers only the term music therapist, however, and not “music therapy” – a point tested when U.K. station Radio 4 launched a comedy show called “Music Therapy” which it was deemed did not break the rules and was allowed to continue.
Sounds like a business plan
In the case of patients taking part in creating music, it is always possible that a session will originate a musical masterpiece with commercial potential. If that work is guided by a music therapist and involves a room full of patients, who, then, would own what?
Mr. Sandford says that in the British National Health Service (NHS), music therapy usually focuses on musical improvisation by patient and therapist, and can include composition and song writing techniques. Musical works created during therapy are treated as part of a patient’s medical records, which patients have the right to access. And, as in the case of saleable works created during art therapy, patients have the right to make money from their music.
Prof. Soetendorp says that, generally, copyright ownership lies with whoever creates and contributes to a piece of music. If a therapist leads a session but without actually making the music that goes on to become a chart-topper, they would not get a share of the royalties. “[Being an] inspiration is not really part of creation,” she says. “You get this issue in universities where researchers are working on things that perhaps lead to a patent. What’s the input of the professor; is there a joint patent?”
If a patient and instructor produce a work of music together then it is protected by a joint copyright if they have both had input, says Prof. Soetendorp. The law does not assign copyright to each contributor according to how much they have put into it. So, even if one does 90 percent of the work, the copyright is split down the middle. If the music was created by 10 people in a group therapy session and they all make a contribution, the copyright is split equally among them. Unless, that is, patients assigned copyright to the therapist or to their company, which then becomes a question of medical ethics rather than IP.
Culled from WIPO Magazine 5/2009
PS
“I'll be your prescription
Come and take a dose of me
Once you get a dose of me
You'll think that I'm your medicine”
The above lines form part of the chorus from the song “Medicine” performed by American Rap Artiste Plies and R& B singer Keri Hilson. The question then becomes is music now therapeutic or therapy is now musical? If you ask me, I would say its good music though.
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