Footnote 05

Of the numerous works covered by the Copyright Act, only one--a musical work--is specifically defined. All the others are described by way of examples--a method of legal drafting which gives scope for flexibility if circumstances change. Because musical works are presently defined as "combinations of melody and harmony, or either of them, which have been printed, reduced to writing, or otherwise graphically produced or reproduced," much contemporary music may not be protected by copyright because it is never written down: It is time for the law to apply the orientation of criteria of fixation as flexibly to musical works as it does to other works. It is irrelevant that a musical work is fixed by recording as opposed to written notation. A law revised in this manner would be consistent in treating, insofar as possible, all subject matter in the same manner. (Pp. 30-31.)

The present law assimilates sound recordings to musical, literary, or dramatic works, This categorization is outdated. It is time to protect sound recordings as a separate category of subject matter. In addition, the law should specify that the protection of a sound recording is totally independent of what is recorded. It is irrelevant whether what is recorded is a work which is protected by copyright or is in the public domain. For example, bird sounds do not constitute subject matter protected by copyright because such sounds are not works. But a sound recording of the same bird sounds would be protected as falling within the new category of copyright subject matter suggested in this recommendation. (P. 49.)

(References to the U.S. Copyright Act are taken from This Business of Music, by Shermel and Krasilovsky (Billboard Publications, 1979) and A Treatise on the Wages of Sinning for Sound, by Tom Schulteiss.)

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