Musicians and Computers

Musicians have for many years realised the creative potential of computers and used them to produce their compositions. Anyone who has ever manipulated the sound envelope of a self-created sound on their home computer will realise what can be achieved in the hands of a professional musician.

Musicians can now buy software packages that allow them to create files which contain a number of special real-time software controls and parameters which they can set and manipulate to generate, for example, ever-changing mood music in real-time – when connected to a music library engine.

The copyright situation is interesting. The file is created by the musician setting up a musical piece using a variety of parameters and instructions. These files can also contain musical seed phrases. The file created including the parameter values and instructions is stored in the memory of the computer and is treated by copyright law as a literary work.

However, at this stage no musical output has been generated. It is only when the file is interfaced with the music library engine that any musical output is generated.

Midi files contain all the information necessary to create a sound when connected to a midi device.

Such midi file recordings would seem to be computer generated works and the owner of the copyright in such recordings would be "the person by whom the arrangements necessary for the creation of the work are undertaken". There is no human input in this operation as it is the musical engine interpreting the created file. Thus presumably the person who is operating the computer and using the musical engine to drive the created file would own the copyright in each midi file recording. It is probable that this person would be the musician.

By conferring copyright in computer generated works, the law appears to confer sufficient originality into each work to give it a separate copyright. Thus, each midi file recording played as a result of the interface between the created file and musical engine would be separately generated and as such would enjoy a separate copyright.

Each computer generated work would probably not infringe the copyright of other previous computer generated works, but difficult questions of originality and substantiality are involved in this.

The awkward question is whether the midi file recordings infringe the copyright in the file that the musician created to interface with the music engine. The question is whether the (literary) file notation could be infringed by a (musical) midi file recording, each midi file being an infringing adaptation of the created file.

However, this risk is more theoretical as there is generally no settled version of the file as the musician will set the parameters on each occasion. In each case after the initial literary/musical work problem has been reconciled it has to be considered whether the midi file recording takes a substantial part of the musician's file composition in the same way that a musical recording could take a substantial part of a sheet music composition.

So, the likelihood is that each midi file recording will have its own musical copyright as a computer generated work since each midi file is generated independently of the previous midi file, due to the random output of the musical engine interfaced with the musician created file. Thus, one midi file will probably not infringe the copyright of other midi files.

The only problem is the risk of the midi file recording infringing the musician created file.

Perhaps it's time to take up brain surgery.

Marcus O'Leary and Alison Harrington are partners at Garrett & Co.