Copyright Law's Musical Work

Abstract

This article addresses and contests a particular narrative about the history of copyright law's engagement with music, an exemplary version of which is to be found in Lydia Goehr's highly influential The Imaginary Museum of Musical Works(1992). According to this narrative, copyright law's conception of the musical object that it protects by means of a property right derives from an aesthetic conception of the musical ‘work’ that itself emerged from the field of musical practice, theory and criticism around 1800. Yet an analysis of the case law arising under the first modern copyright legislation of 1710 shows that copyright was recognized as vested in the composer of a musical ‘writing’ as early as 1777 in England, and that an embryonic legal ‘work-concept’ had already taken shape a decade or more earlier than that. This concept developed through a complex set of articulations between the doctrinal logic of property law and, especially, economic and aesthetic understandings of what a musical artefact was and where its value resided. However, far from simply absorbing aesthetic ideas about musical or other cultural practices, it is argued here that copyright's categories have developed relatively autonomously of these and other ‘external’ influences. Further, being only relatively autonomous, they have also actively helped to shape what is assumed – by Goehr and other historians of culture – to have shaped them. In short, the central claim of this article is that the work done by intellectual property discourse in forging conceptions of cultural form has been significant and important, and that copyright doctrine has accordingly played a major role in producing that plural construct which is known as ‘the’ musical work-concept.