Comparative Study On The Copyrightable Component Of Music

Music is one of the oldest forms of human expression,and “musical work” is also a kind of work generally protected by copyright law around the world.According to WIPO Glossary of Terms of the law of copyright and Neighboring Rights,China's copyright legislation,the United States copyright law,together with the judicial interpretation,we can conclude that,music is essentially an original combination of sound,which consists of melody,harmony,rhythm,timbre and other expressional elements.However,such elements except melody are generally neglected,even there is a view that copyright only protects melody.Admittedly,such elements by itself have not been recognized copyrightable in the judicial practice of China and the United States.Therefore,what is a musical work? Whether each component of music can have the possibility of originality,thus protected by copyright law?There is another question related to music,whether a musical arrangement can be a derivative work.The word “arrangement” was stipulated in Berne Convention and the American Copyright law,however abstract,which is absolutely absent in China's copyright law.Actually,these two seemingly unrelated issues are closely correlative.The second issue depends largely on the conclusion of the first issue.Such issue can both solved by considering whether that work is an expression or an idea,and by applyingthe rule of originality.Therefore,this article tries to distinguish idea from expression of music,to find out whether each component has the possibility of originality,and to what extent.Such may help us understand why different musical component of were treated differently in the context of law and music,and also may help us determine whether a work is copyrightable.This article comes to two main following conclusions.The melody has large space of originality and can be protected independently as a musical work,but short pieces and common mechanical arrangement need to be eliminated.Simple harmonic progressions are typically the result of functional considerations,however,more sophisticated type of harmony as a “fancy harmonic layer are not functional by nature,and should be afforded the typical protections of copyright law.Most of the rhythm has fallen into public domain,and cannot be afforded protection.Although timbre is typically explicitly ignored in musical copyright considerations,it still may come into play because of its importance as a critical feature of musical expression and its possibility of originality.The key of a song is irrelevant to originality,thus not copyrightable.Looking from the view of originality can help us understand the meaning of arrangement and adaptation of music.Mechanical changings,such as changing the key,simplifying or deleting the harmony,are not within the meaning of adaptation under Berne convention.However,changing the melody,adding sophisticated harmony,original orchestration may be regarded as musical adaptation,thus can be copyrightable.