MIDI Files & Copyrights: Standing At The Crossroads
By Simon Higgs
International MIDI Association Bulletin
Spring 1993
1. Introduction
We have a wonderful tool in the MIDI File. The music industry must be congratulated for doing something that the computer industry has yet to master - compatability amongst competitors. Now this tradition continues with the proposed Open Music System (OMS v2.0). Although this article is has nothing to do with OMS, I hope that those putting in long hours to make it work realise that when a format becomes successful and enjoys widespread use, there is a need for the legal implications to be addressed - and the sooner the better. Up until now there has been some confusion about the legal status of the MIDI File, especially in regard to copyrights. I believe we are at milestone, no - at a crossroads in the development of digital technology. All of a sudden there is a great ease in duplicating - replicating for those Trekkers out there - firstly without any quality degredation, and secondly across different medium. Soon one fibre optic cable will carry telephone,fax, & interactive video into homes. Compuserve and America Online's service will be rivalled by TV's QVC and it'll only need a remote control (and not a whole PC) to use it. If we are not careful, the copyright protection that has been enjoyed in the past will be lost to the 'fair use' clause of the Copyright law. If any of you have read my previous article which appears in the June '93 issue of Keyboard, you will already be familiar with (or baffled by) the BBS situation. If you haven't seen it yet make sure you get yourself a copy! In this, the article you are now reading (and because you lot are supposed to be an educated bunch!), is a lot more in depth coverage of the major copyright issues facing the humble MIDI file. Let me explain further...
2. Copyright issues pertaining to music store in Standard MIDI File Format
The US Copyright Office has had a tough job in the last decade or so battling new technology on the one hand and Congress' budget cutbacks on the other. The resources needed to deal, not just with MIDI, but other digital audio or visual medium as well, are sorely lacking, although the staff of the US Copyright Office is currently studying the issues raised by Multi-Media, fibre-optic interactive-TV, and the transfer of copyrighted material over computer networks such as Internet. All these tasks present a challenge on their own, and a very large headache combined. One of the questions still unanswered is whether the existing copyright law is robust enough to handle the onset of our digitized future. Those I have spoken to at the Copyright Office think it will withstand the test of time. I'm personally not so convinced, as this article will explain, because (amongst other reasons) the current situation regarding the MIDI Song File and electronic bulletin boards (BBS's).
As the copyright law stands at the time I write this (and it will most likely be the same when you read this), the MIDI File falls fairly and squarely between the cracks in the law, and is not subject to the protection that the existing copyright law demands. There are essentially three conditions to determine whether the subject matter is copyrightable: 1) it must be a work of authorship; 2) it must be original; and 3) it must be fixed in a tangible medium of expression. Don't get me wrong, the musical work embodied in the MIDI File enjoys full protection of the copyright law. However, the shell (for lack of a better phrase) - that is the MIDI File that contains the work, is not recognized as a fixed form, and therefore cannot be registered by the US Copyright Office. It's relatively simple to realise that if you can't register something then you have no established copyright protection for that work. In this particular case, it is only the registration of the work in the fixed form of the MIDI File that is being prevented. The good news, as I'll explain below, is that you can still register the work by providing the US Copyright Office with copies in other fixed forms in lieu of the MIDI File.
3. Liability issues regarding music in this format uploaded onto BBS
Something that a lot of people don't realize when they upload files to a BBS is that there are certain rights transferred, or waived. Every SysOp (System Operator - the person who is in charge of the BBS) will post some kind of rules for anyone using their BBS. Most of the time this is for their legal protection, and will look something like this:
"By Your Use of this System, You agree to HOLD HARMLESS the Operators Thereof Against ANY and ALL CLAIMS Arising Out of Said Use NO MATTER THE CAUSE OR FAULT."
This is a standard waiver, where the user is told that whatever happens, it's not the responsibility of the Sysop(s). One of the purposes, especially on 'chat' or 'dating' BBS' (where you communicate with others using the BBS by typing in real time), is to protect the Sysop from lawsuits from people that have met via the BBS. Some examples are: a) where a sale via online classified ads is fraudulent, or b) someone gets raped on a blind-date which has been set up online. Unfortunately, this is also to protect the Sysop from any liability from them knowingly (or unknowingly), having copyrighted material on their BBS.
"Transfer of copyrighted software, text, or graphics, without the permission of the copyright owner. Uploading of PIRATED software (copyrighted software NOT intended for shareware-type distribution) is forbidden."
Now the BBS is telling you that you may not upload any copyrighted material. All fine and good. Or is it? This is where the cracks in the law open and swallow up the MIDI File. As I explained earlier, the MIDI File can't be registered at the US Copyright Office and therefore can't be copyrighted in that form (remember the contents of the MIDI File may be copyrightable in other forms). This situation as defined by present law, allows users to upload MIDI Files containing copyrighted material, and for the Sysop(s) to allow it, with no licensing arrangement for the collection of royalties for the copyright owner(s).
It's also worth mentioning at this point that there are three types of MIDI Files being uploaded to BBS's. The first type is public domain, where there is no applicable copyright on the work (such as Bach, Beethoven, etc.) embodied in the MIDI File. The second type is the pirated version of a commercial MIDI File, which is a clear infringment of the copyright law. The third type is not a commercially released MIDI File, instead it is the uploader's own version of a musical work that is subject to an existing copyright.
A Sysop of the MIDI forum of a major online service - which charges by the minute for a connection - (I can't say who for legal reasons), is reported to have said at the January '93 NAMM Show that almost half his income comes from the online charges from downloading MIDI Files, and that he had no intention of licensing his MIDI Files given such a large profit margin.
"ALL illegal activities, including the exchange of passwords, or information exchanged for the purpose of committing illegal activities is strictly forbidden."
Now the question we all have to ask - is any of this illegal? Yes, let's be blunt about this. The copyright law is being broken because the copyright material embodied in the MIDI File is still subject to copyright law. So why is this still going on? There are several reasons being used by Sysops to explain this away, including the fair use clause in the copyright law. Another reason given Sysops give is that there is not enough income being lost to justify any change in the law. None of this will hold water in Federal Court, which is where this situation will probably have to be resolved. Unfortunately, as of the time of writing, there has been no court proceedings by an infringed party or active involvement by the FBI for copyright piracy.
To put this into better perspective, there are 1.3 million 'hosts' (another term for a BBS) on Internet alone (Internet is a limited access electronic data communications back-bone that connects universities, military installations, and other organizations together and was originally designed to disseminate research information). There are probably double that number of unlicensed (i.e. none required) public BBS's connected to the telephone network where anyone can connect with just a computer and a modem. There are hundreds of BBS's that are dedicated to music and contain thousands of MIDI Files. Unsuprisingly, no one is going out of their way to publish specific figures for MIDI File downloads for obvious reasons. Here's some very conservative math: If 1% of the BBS's have 50 MIDI Files available, and each is downloaded 50 times given a 50� royalty - that's $48.75 million in lost revenue for the music publishing industry. Given the recent economic state of the US, I'm suprised that nothing has been done yet by the publishers to challenge the largest of the offending BBS's in court.
4. Authors rights, performance rights
ASCAP & BMI are only in busines to collect performance royalties. These are derived from radio, TV, & movies etc. The Harry Fox Agency collects mechanical and synchronisation royalties. Harry Fox has started to tackle the situation with it's MIDI License, which is really just a replacement for the mechanical rights of a MIDI File. Unfortunately, because of the traditional way the publishing industry has operated in the past, this license reflects the way the industry operates and unfortunately falls prey to the limitations that are imposed upon it. What the license will grant is the non-exclusive rights to (A) record and re-record the musical composition for use in connection with respect to MIDI sequence(s); (B) make and distribute copies of the MIDI sequence program throughout the (designated) territory only; (C) make arrangements and orchestrations of the Composition for it's recording purposes. What the MIDI License doesn't give you is the rights to alter the fundemental character of the composition, the rights for the end-user to print out sheet music for their own personal use, or anything else that is not covered in (A), (B), or (C), such as public performance or synchronisation to video or film. It also explicitly prevents you from renting out MIDI Files, which would probably apply in the case of computer/Nintendo/Sega games that have MIDI generated sound tracks. Not letting you alter the fundamental character of the original composition is reasonable, though it does prevent new works from being created that are derived (and the credit given) from existing works. What is probably of bigger concern is the lack of print rights. Let me go into a little background. Today the publishing industry is divided between the publishers and the print publishers. The publishers are geared to getting songs placed on albums, or in movies, etc. The print publishers, who have exclusive print rights licensed from the publishers, sell the sheet music and take pride in the fact they are the only ones licensed to do so. Because of this situation, Harry Fox Agency doesn't have the authority to license for print. The only one who can grant a license to print is the holder of the exclusive print rights, and it has to be done separately from the Harry Fox MIDI License. As far as public performance goes, neither ASCAP nor BMI is collecting royalties specifically from the public performance of MIDI Files.
Larry Hiller's Notestation is a good example of how this situation works in the real world. The MIDI Files are licensed through Harry Fox's MIDI License, while the sheet music is licensed separately through the print publisher. This means that some songs are only made available on MIDI File, and others are only made available as sheet music. Most, however, are available in either format.
Musitek's MIDIScan is a Windows based program that is being designed around OCR (optical character recognition) technology, and will be able to scan any piece of sheet music and produce a MIDI File of that music. Coda are also working on a OCR version of Finale. Neither version is expected to be released until 1994 although from what I've seen of MIDIScan, the results look promising.
Which brings me to another issue that the MIDI File is faced with. There is a school of thought which, after taking the new technology into consideration, says that a MIDI File be licensed based on it's source. That is, if the MIDI File is created from a lead sheet or score, then the license is print. If the MIDI File is created based on the artist's CD version, then the license is mechanical. If the sheet music is derived from a MIDI File then the license is MIDI, or is it print? No wait - it could be mechanical... Maybe this is the way to go? Although it seems like a logical way to approach things, I think this will be very confusing in the long-term especially since all these forms are now interchangeable thanks to digital technology. This is the crossroads situation I was talking about in the introduction. The choice has to be made - which direction to go to protect our intellectual property? What type of rights should be licensed to cover a MIDI File? Well if it sings AND dances...
5. Position of US Copyright Office
As I mentioned above, the official position from the US Copyright Office is that the MIDI File is not yet recognized as a tangible, fixed form, and so cannot be accepted for copyright registration. This doesn't mean that a work contained in MIDI File format is not copyrightable. Bob Kohn (Vice President, Corporate Affairs for Borland International, Inc. and co-author of The Art Of Music Licensing) explains "Just because the Copyright Office won't accept certain forms of deposits (e.g. MIDI Files on a disk), it doesn't mean MIDI Files are not copyrightable subject matter. A MIDI File may contain a musical composition and a sound recording, both of which are copyrightable." It's unlikely that the MIDI File could be classed as a 'phonorecord' because there are no specific fixed sounds contained in the MIDI File (Title 18 of the U.S. Code, Section 2319(c) states "material objects in which sounds...are fixed by any method now known or later developed, and from which the sounds can be perceived, or produced, or otherwise communicated"). MIDI Files do fall under the US Copyright Office's classification of a 'machine readable work'. This means that the file is similar in nature to a word processing document - i.e. contains information that is stored in the document and has to be read by some kind of software or hardware (known in this situation as the good ol' sequencer). It's this information which is copyrightable and can only be registered in other fixed forms than a MIDI File at this point in time. Here's how to do it as explained by the US Copyright Office:
"A musical work contained in MIDI File format can be copyrighted by completing and filing the Copyright Office's Form PA. In addition you must provide a) a notational manuscript print out of the MIDI File, and b) a cassette recording of the 'best audio representation' of the musical work that the MIDI File produces, preferably using a General MIDI sound source so that the intended instrumentation is readily identifiable (if the work does not adhere to the GM format then use the format you are already using for the work). "
6. Recommendations to our members on how to protect themselves from possible legal action
Copyright what's yours. Don't infringe other people's copyrights. License, license, license. Actually, now I get to do my 'in my humble opinion' bit! It seems to me that because of the changes that are occurring (on a bigger scale than just MIDI), new forms of licensing that can encompass all the rights that a particular fixed form has would simplify royalty collection and protect everyone. There's also the potential now for a major telecommunications bill that would cover fibre-optic communications that encompassed everything from telephones to faxes to online services to interactive & regular cable TV. In order to protect the copyrights of all involved I beleive that new legislation will eventually be required to cover all this. How does all this apply to the MIDI File in the here & now? For a start, how about a comprehensive MIDI File licensing agreement that provides the following rights to:
- Record and re-record the musical composition for use in MIDI sequence(s);
- Make and distribute copies of the MIDI sequence program throughout the (designated) territory;
- Make arrangements and orchestrations of the Composition for it's recording purposes;
- Allow the end user to print out a copy of the sheet music for personal use only;
- Synchronize the MIDI File to an audio-visual presentation.
While discussing MIDI licensing with Bob Kohn, he mentioned that it is possible that existing exclusive print agreements drawn up many years ago may not cover electronic media. In this situation, the print rights for the MIDI File have yet to be assigned and can be licensed through a license similar to that described above. He also recommended that future exclusive print-rights licenses exclude MIDI Files for the same reasons.
An excellent book that's compulsory reading (and which the authors intend to keep pace with changing technology) is The Art Of Music Licensing by Al & Bob Kohn published by Prentice Hall Law & Business.
Stop Press:
Several minutes after I had finished slaving over this article (great timing, huh?), I received a call from the US Copyright Office asking me what kind of hardware & software they would need to be able to start accepting MIDI Files for registration. The staff at the US Copyright Office are beginning to address the issue as you read this. What they can't do is enforce the copyrights they register. They are not empowered by Congress to do this. This will be up to you if you're the copyright owner standing at the crossroads...
Copyright © 1993 Simon Higgs. All rights reserved.