The Historical Development of Music Copyright up to the Early 1900’s

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Chapter 3: The Further Development of Music Copyright: The Role of Technological Developments and the Imperial Copyright Act

“Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.”1

The Role of Technological Developments in the Further Development of the Reproduction Right in Musical Works

Introduction

The advancement of technology has always presented problems in relation to the protection of copyright and music rights in particular.2 Just as the meaning of “books and other writings” in the Statute of Anne was interpreted to extend to printed music in Bach v Longman, and just as the meaning of “author” was extended to include a music composer, so it has become necessary over the years to extend or re-interpret copyright law to include new forms of musical exploitation.3 Over the years various technologies have had a major impact on the development of copyright law. Writing on how new forms of reproduction have affected the development of copyright law, Skone James has observed:
Copyright is a right whose legal recognition has closely followed every expansion in the forms of reproduction. It originally arose from the creation of the art of printing and, though recognised in England as having subsisted at common law, it was not of practical importance until the production of printed copies of literary works gave rise to the first Copyright Act in the reign of Queen Anne. The production of printed copies of musical notation gave rise to the copyright protection of music and a parallel development gave rise to the protection of dramatic works. As a natural consequence of protecting the reproduction of musical and dramatic works, followed the protection of performing rights in such works. The next development was the creation of mechanical or semi-mechanical means of reproducing works … The last development of this kind which had occurred before the Act of 1911 was the manufacture of gramophone records …4
In the twentieth century the major technologies that have had a major influence on the development of copyright law are recording technology, film technology, radio technology and television and video technology. An understanding of the historical development of these technologies is useful in understanding the concomitant development of copyright law in response to these technological developments. Accordingly, a brief account of these technological developments is provided here. Thereafter it is shown how these technologies have shaped the development of copyright law, in particular the reproduction right. This analysis will be helpful in understanding the full nature of the reproduction right in musical works in South Africa today, and the technologies that have shaped the development of this right. It needs in this regard to be mentioned that, after it was shaped in this manner, the reproduction right in musical works has remained largely unchanged throughout the world, especially in common-law jurisdictions.5 It will more particularly highlight how this right is applied in the music industry, in particular how the right has been fragmented to cover segments of the music reproduction market (e.g. the mechanical reproduction market; the synchronisation market etc.)6 – something that one will not be able to appreciate from a simple reading of the Copyright Act.

An Overview of the Historical Development of Technologies Affecting Music Reproduction
The development of recording technology

In the area of mechanical reproduction, the early technologies that gave rise to the necessity to adapt copyright law were: (i) the music box, invented in 1796 by Antoine Favre, a Swiss watchmaker; (ii) player pianos,7 popular from the 1800s to the 1920s; and (iii) the phonograph and gramophone, developed in the late 1800s.8 In particular because of the increasing use of player pianos with their use of perforated rolls instead of sheet (i.e. printed) music, the market for sheet music was in the decline during this period. As a result music publishers sought to extend the protection given in respect of sheet music, to the new piano rolls.9 It was however, Thomas Edison’s invention of the phonograph and Berliner’s subsequent invention of the gramophone that brought matters to a head. This situation is well-captured by Copinger, as follows:
In the year 1886, the date of the Berne Convention, the only mechanical means generally known for reproducing music were musical boxes and Barbary organs. When, therefore, at the request of the Swiss delegates to the Conference of Powers which preceded that Convention, it was, in the interests of a national Swiss industry, declared by Article 3 of the Final Protocol that mechanical reproduction of musical airs should be no infringement of copyright, musical composers did not feel that they were abandoning rights of any great value to themselves. But when instruments were invented capable of reproducing not one or two tunes, but any number of tunes, and even the words of songs, by means of perforated rolls, discs and cylinders, and it was found that these evidently supplied a public need and met with a ready market, composers became perturbed. …10
Although the “earliest known” device for producing and reproducing music mechanically – the “Banu Musa” or hydraulic / water organ – “remained the basic device to produce and reproduce music mechanically until the second half of the nineteenth century”,11 it was Edison’s 1877 invention of the cylinder phonograph, itself modelled upon Scott de Martinville’s12 phonautograph of twenty years earlier – which revolutionised the industry for the mechanical reproduction of musical works.13 This is because while earlier devices could only record music, it was Edison’s invention that introduced the technology of replaying the recorded sound.14 Edison’s phonograph was perfected by Emile Berliner, who, in 1899, invented the gramophone and replaced Edison’s rotating cylinder phonograph with the flat disc vinyl phonograph record. Berliner’s flat disc phonograph record “essentially finalized the now-common disc design seen in records everywhere”15 and in fact, signalled the advent of what is today a gigantic music recording industry with networks spanning the entire globe.16 The market was ripe for the introduction of mechanical rights in musical works.

The development of film technology

Copyright law was also required to adapt in response to the fledgling film industry, which showed itself to be a force to be reckoned with at the turn of the twentieth century. Although our interest is in how film technology impacted upon the development of music rights, it would be important to understand how film technology itself evolved to give rise to the need for music rights protection. Although films were recognised as a work eligible for copyright protection in their own right as early as the 1908 revision of the Berne Convention, the technology for film developed over time. In this regard it is important to note that the earlier development of photography was essential in the development of cinematography.17 The earliest demonstration of motion picture technology happened in California in 1877 through the so-called Muybridge photographs. Eadweard Muybridge, an English photographer, used twelve equally-spaced cameras to photograph a galloping horse in a sequence of shots in order to demonstrate that at some stage, all four hooves of a galloping horse left the ground.18 To counter criticisms, Muybridge gave lectures on animal locomotion throughout the United States and Europe, using a zoopraxiscope, “a lantern he developed that projected images in rapid succession onto a screen from photographs printed on a rotating glass disc, producing the illusion of moving pictures.”19 This was the precursor to the modern cinema.
Later developments gave rise to single cameras capable of taking a sequence of photographs at regular rapid intervals. In this regard the name of Thomas Edison again features, and it is he who is credited with inventing the motion picture camera – the Kinetograph – in 1889, although his camera in fact relied on earlier technologies.20 The first film projection machine, the Phantoscope, was developed by Charles Francis Jenkins with the financial assistance of Thomas Armat.21 Armat, who later bought rights to the Phantoscope, perfected his own version of the Phantoscope and later sold the rights to manufacture the machine to Thomas Edison. With Edison’s involvement the Phantoscope, now marketed as the Edison Vitascope, paved the way for emergence of a viable film industry.22 At this stage motion pictures were still “silent pictures” with no synchronised recorded sound and with the music “supplied either by a piano player or by an orchestra”.23
The development of technology to synchronise recorded sound to films, and in particular the use of music in synchronisation with the soundtrack of the film, introduced a new source of income for owners of copyright in musical works through the issuing of synchronisation licences, namely the permission to synchronise music in timed-relation to the soundtrack of a film.24 This was made possible through Warner Bros. Pictures’ Vitaphone system, which they had bought from AT&T and used to synchronise music and sound effects in the film, Don Juan in 1926, albeit without speech at this stage.25 The inclusion of a presentation of the filmed remarks of Will Hayes, the director of the Motion Picture Producers and Distribution Association of America, in the film, and Al Jolson’s audible remarks in the 1927 film, The Jazz Singer, marked the birth of “talking pictures” or “talkies”.26 The development of this technology was described in the case of Alden-Rochelle, Inc., et al v American Society of Composers, Authors and Publishers et al27 as follows:
At first the sound part of talkies was recorded on phonograph discs which were so operated that they synchronized with the pictures projected on the screen on the screen. Later, the speech of the actors, the music and sound effects, were recorded on the “sound track” of the film, which paralleled the pictures, so that when the pictures were projected on the screen the sound was heard by the audience
Film had an early history in South Africa also. A 1910 account refers to a bioscope visit that had “such a good reception” that a second visit was organised, paid and proved successful, with the pictures “clearly shown …and … free from flicker, being evidently carefully selected.”29 Moreover, the account goes further to show that two theatres existed in the Rand, with the one presenting “biograph and vaudeville”, and a new theatre presenting “picture shows and vaudeville” at regular intervals, and already “[raking] in the shekels during the holidays.”30

The development of radio technology

The introduction of radio and television technologies ushered in the high-tech entertainment industries of the twentieth century, where recording and film technologies were taking to a higher level.31 Recording technology was adapted for radio in the form of electrical transcriptions,32 while film technology became the platform for the new television industry. It has been observed that the invention of radio technology cannot be ascribed to one person, but rather to “continuous contributions from a variety of inventors over the span of time beginning in 1873 to about the start of the twentieth century” – beginning with James Clark Maxwell, who introduced the concept of electromagnetic energy as a form of energy existing in waves.33 This concept was validated by Henrich Hertz, who conducted experiments proving the existence of electromagnetic waves which were later termed the Hertzian waves.34 Hertz was nevertheless not interested in the Hertzian waves as being a source of communication and “did not appreciate the monumental practical importance of his discovery.”35
It was left to Guglielmo Marconi, credited as being the “father or radio”, to perfect the art of radio telegraphy, securing the world’s first patent in this regard in 1896 and later developing the first practical radio-signalling system and the first transoceanic transmission.36 In 1906 an American inventor, Lee de Forest, invented the vacuum tube (audion), and is credited with contributing to the beginning of the electronic age.37 It was the Joseph Horne Company that facilitated the commercial use of radios from its primary use as wireless communication for the military. This the company achieved by beginning to sell radio receivers through newspaper adverts. This, coupled with the first informal transmission of sports results, music and talk by Frank Conrad in the early 1920’s from a make-shift “radio station” located at his garage, became the breeding ground for American broadcasting.38 In South Africa it has been observed that the history of broadcasting “can be traced back to 1923, when the first wireless broadcast was made in Johannesburg”, leading eventually to the formation of the national broadcaster, the South African Broadcasting Corporation (SABC).39

The development of television and video technology

Early television technology was based on radio technology and used the model for broadcast radio.40 In this regard it has been observed that “the period of transition from radio to television that is associated with the 1950s in western countries saw the wholesale recycling of radio programmes as the basis for new television shows.”41 Prior to this the Russian, Boris Rosing, had experimented with the technology of transmitting images in the early 1900s, with John Logie Baird and Charles Francis Jenkins developing a system of mechanical television in the early 1920s.42 It was however, the demonstration of electronic television in 1927, when Philo Taylor Farnsworth successfully scanned images with a beam of electrons, that marked the beginning of modern television.43 The Radio Corporation of America (RCA), which had dominated radio, invested in the development of electronic television and made its first regular television broadcasts in 1939, during which year it also started selling television sets.44 It was only around 1949 however, that commercial television began in earnest.45
Synchronisation technology played a major role in the development of television, just as it did in the case of film.46 While it has been said that at its early development television, like radio in the 1920’s, “initially traded on being a live medium” – essentially “radio with pictures” – “[i]t did not take broadcasters long … to realise that they needed a method of recording content ‘offline’ for subsequent transmission, and of recording live broadcasts for future use.”47 This is where synchronisation became relevant. Television producers began to increasingly rely on film-originated material and recorded film-based television programming capable of being used at different times. Telecine technology using the telecine machine for transferring motion-picture film into video became crucial for non-live television programming.48 Music inevitably became an integral part of synchronised television programming, and this trend came to a head during the era of “music television” in the 1980s, championed by MTV.49 It has been observed that television has transformed radio’s content and role; and although broadcast radio remained “the most widely available electronic mass medium in the world”, its importance has not matched that of television.50
The development of video technology is very much related to the development of television technology. Video technology itself is a relatively-new invention, coming to the fore when the television industry started using videos in the late 1950s.51 Earlier video cameras were huge machines mounted on wheeled pedestals and comprised of vacuum tubes that could get extremely hot.52 Over time the cameras became smaller and portable, culminating in the VHS and Betamax tape formats of the 1970s and the “camcorders” of the 1980s.53 Under UK law in terms of the Imperial Copyright Act it has been observed that a video tape recording would be protectable under the Act as a series of photographs on the ground of it being produced by “a process analogous to photography”, since both processes use a process of light “to produce a permanent record of an image.”54 In the United States the so-called Betamax case55 provides a good illustration of how the introduction of technology – in this case video technology – has often created tension with regard to copyright protection. When Sony developed the Betamax video tape recording format in the 1970s the television networks were concerned that these videotape recorders (VTRs) facilitated the home recording by VTR consumers of television programmes in which they held copyright.
In 1976 Universal Studios and Walt Disney Productions instituted proceedings in the US District Court for the Central District of California. They sought no relief from the Betamax consumers but alleged that Sony and the distributors of the VTRs were liable for copyright infringement because of their marketing of the VTRs. They thus sought money damages and an equitable accounting of profits from Sony et al, as well as an injunction against the manufacture and distribution of the Betamax VTR.56 In 1979 the District court ruled in favour of the Betamax manufactures, denying relief to the television networks. On appeal, the Ninth Circuit overruled the District court’s decision, ruling that Sony et al were liable for contributory infringement of copyright.57 Upon appealing to the US Supreme Court, the court, in a narrow majority (5-4) held in favour of Sony et al, ruling that private, non-commercial time shifting58 at home amounted to fair use and thus did not infringe copyright. The court made the following important observations in relation to the interaction of technology with copyright law:
From its beginning, the law of copyright has developed in response to significant changes in technology. Indeed, it was the invention of a new form of copying equipment – the printing press – that gave rise to the original need for copyright protection. Repeatedly, as new developments have occurred … it has been Congress that has fashioned the new rules that new technology made necessary.
In the dissenting judgment a history of US copyright law and how it was extended to provide protection for new forms of usages, and the impact of new technology in general, was recounted:
This Nation’s initial copyright statute was passed by the First Congress. Entitled “An Act for the encouragement of learning,” it gave an author “the sole right and liberty of printing, reprinting, publishing and vending” his “map, chart, book or books” for a period of 14 years. … Since then, as the technology available to authors for creating and preserving their writings has changed, the governing statute has changed with it. By many amendments, and by complete revisions in 1831, 1870, 1909, and 1976, authors’ rights have been expanded to provide protection to any “original works of authorship fixed in any tangible medium of expression,” including “motion pictures and other audiovisual works.”
Proof of actual harm, or even probable harm, may be impossible in an area where the effect of a new technology is speculative, and requiring such proof would present the “real danger … of confining the scope of an author’s rights on the basis of the present technology so that, as the years go by, his copyright loses much of its value because of unforeseen technical advances.” … When the use is one that creates no benefit to the public at large, copyright protection should not be denied on the basis that a new technology that may result in harm has not yet done so. …61

The Further Development of the Reproduction Right in Response to Technological Developments

The Development of the Mechanical Right – a Response to Recording Technology

(a) The Recognition of the Mechanical Right in France and in International Law
In Chapter 2 an account was given of how the performing right took root and flourished in France, as compared to the situation in Britain. It was also pointed out that the market for printed music and print rights was not as successful in France, and in this regard the Anglo-American world took the lead. What is also evident is that, unlike in the case of performing rights, developments regarding the recognition of authors’ rights in the area of mechanical reproduction (as opposed to the manual copying of sheet music) also had a late arrival, not only in France but elsewhere also. In France attempts to construe the law of 1793 as being also applicable to mechanical reproduction faced resistance.62 France had entered into a commercial treaty with Switzerland dated 30 June 1864, in which it undertook to pass a law to exclude mechanical reproductions from the ambit of the 1793 decree.63 This law was passed in 1866. In this regard the following has been noted:
The process of winning recognition of the fact that mechanical reproduction of copyright works in France was covered by the decree of 1793 was also complex and protracted. In May, 1866, at the behest of a Swiss government anxious to protect its developing music box industry, the French government passed a law which provided that the manufacture and sale of instruments which mechanically reproduced music in the private domain did not constitute an unauthorized use and was not in breach of the law of 1793.64
The terms of this 1866 law found their way into the Berne Convention when it was enacted in 1886.65 In this regard the Final Protocol of the 1886 Convention stated under No. 3, after an “animated discussion”:
It is understood that the manufacture and sale of instruments for the mechanical reproduction of musical works in which copyright subsists shall not be considered as constituting an infringement of musical copyright.66
At the 1896 Paris revision of the Berne Convention the question of the authors’ rights to authorise the mechanical reproduction of the works again came to the fore. In explaining the rationale for the granting of immunity in respect of mechanical reproduction of copyright in the Final Protocol of the 1886 Convention the French delegation observed that the Berne Convention had in mind those instruments which included their own notation and had a reproduction capability limited to certain airs. The immunity should not … apply in fairness to instruments which were capable of playing an infinite number of airs by introducing – in the form of perforated cards – notations which are external to them, movable and unlimited in number. There was no longer a fusion between instrument and notation, the latter being but an edition in a particular form, which could not be lawful without the author’s consent.67
Presumably the Swiss music box fell within the category of instruments where “there was … fusion between instrument and notation”. Since then however there had been wide-reaching technological developments in the area of mechanical reproduction of musical works, where indeed the instruments manufactured involved “notations which [were] external to them”. Berliner’s perfection of the phonograph by introducing the flat disc phonograph revolutionised recording technology and in essence paved the way for the development of the modern recording industry. In light of this development it is reported that a retired French tax official named Vives instituted proceedings against Pathe-Marconi, a recording company, on behalf of a group of music publishers, in 1903, under the conviction that France’s 1866 law did not apply in respect of music recordings. Vives argued that records were not “mechanical instruments” but “[constituted] a form of musical reproduction which was covered by the law of 1793.”68 The music publishers had authorised Vives to administer their mechanical reproduction rights, at his own risk, in return for forty percent of any proceeds derived from that. Vives lost the 1903 proceedings and appealed in 1905, succeeding on appeal. Regarding this it has been noted:
This decision constituted the first recognition by French jurisprudence that royalties were due to rights owners for the mechanical reproduction of their works on phonographic cylinders and discs – a major advance on the Berne Convention of 1886.69
The question as to what rights authors had in respect of the use of their works through the new mechanical devices came to a head at 1908 Berlin conference convened to revise the Berne Convention.70 In the discussions that ensued in this regard the following was observed:
Since 1896 the manufacture of mechanical musical instruments has undergone an unexpected development; substantial industries have formed in various countries, and thousands of copies of pieces of music in ever increasing numbers have been reproduced.71
Accordingly the German delegation called for the reconsideration of the issue and in the end managed to sway opinions. Thus Final Protocol No. 3 of the 1886 Convention was replaced by Article 13 of the 1908 revision, which provided the following:
The authors of musical works shall have the exclusive right of authorizing: (1) the adaptation of those works to instruments which can reproduce them mechanically; (2) the public performance of the said works by means of these instruments.

TABLE OF CONTENTS
DECLARATION
SUMMARY
KEY TERMS
ACKNOWLEDGEMENTS
LIST OF ABBREVIATIONS
PART 1 THE HISTORICAL DEVELOPMENT OF COPYRIGHT IN MUSICAL WORKS
Chapter 1: Introduction
1. Research Problem
1.1 Background
1.2 Statement of the Problem
2. Research Questions
3. Aims of the Study
4. Points of Departure, Hypotheses and Assumptions
4.1 Points of Departure
4.2 Hypotheses
4.3 Assumptions
5. Significance of the Study
6. Scope and Delimitation
7. Research Methodology
7.1 Introduction
7.2 The Research Methodology used in this Thesis
8. Framework of the Study
Chapter 2: The Historical Development of Music Copyright up to the Early 1900’s
2.1 Introduction
2.2 The Historical Development of the Print Right and the Performing Right
2.3 Conclusion
Chapter 3: The Further Development of Music Copyright: The Role of Technological Developments and the Imperial Copyright Act
3.1 The Role of Technological Developments in the Further Development of the Reproduction Right in Musical Works
3.2 The Impact of the Imperial Copyright Act, 1911, in the Reframing of Copyright in Musical Works105-122
3.3 Conclusion
Chapter 4: The Historical Development of Music Copyright in South Africa
4.1 Introduction
4.2 An Overview of the Historical Development of Music in South Africa
4.3 The Historical Development of Music Copyright up to 1917
4.4 Conclusion
PART 2 THE MODERN PROTECTION OF COPYRIGHT IN MUSICAL WORKS
Chapter 5: General Principles of Copyright Protection with a Focus on Music Copyright Protection
5.1 Introduction
5.2 The Nature and Meaning of Modern Copyright
5.3 The Subject-Matter of Copyright
5.4 The Requirements for the Subsistence of Copyright
5.5 Conclusion
Chapter 6: The Collective Management of Musical Works: A Contextual Overview
6.1 Introduction: The Essence of Collective Management of Copyright
6.2 Dealing with the Monopolistic Nature of Copyright Societies
6.3 Has Digital Technology Rendered the Role of CMOs redundant?
6.4 Collective Management in Africa – General Observations
6.5 The History and Nature of Collective Management in Musical Works in South Africa
6.6 The Anatomy of an African Collecting Society: The Case of the Southern African Music Rights Organisation (SAMRO)
6.7 Conclusion
Chapter 7: The Protection of Musical Works Under the Copyright Act 98 of 1978
7.1 Introduction
7.2 An Overview of the United States Legal System
7.3 A Consideration of Provisions of the Copyright Act 1978 and the Copyright Amendment Bill 2017 having an Impact on the Copyright Protection of Musical Works
7.4 Conclusion
Chapter 8: Digital Technology and Music Copyright’s Continuing Struggle for Survival
8.1 Introduction
8.2 Dealing with Digital Technology
8.3 The Traditional Music Market and the Role of Copyright in Organising the Market
8.4 Blurring the Lines – “Safe Harbour” and the Disruption of the Value Chain
8.5 Conclusion
Chapter 9: Conclusion
9.1 Summary
9.2 Recommendations responding to the Copyright Amendment Bill 2017
9.3 Final Recommendations
BIBLIOGRAPHY
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