Mash‐Up Songs: Are There Any Exceptions to the Exclusive Rights in the Light of the Jordanian Copyright Protection and Related Rights Law?

• Date: 01 July 2015
• DOI: http://doi.org/10.1111/jwip.12033
• Author: Ramzi Madi
• Published date: 01 July 2015

Mash-Up Songs: Are There Any Exceptions to the

Exclusive Rights in the Light of the Jordanian

Copyright Protection and Related Rights Law?

Ramzi Madi

Al-alBayt University

This article focuses on the phenomenon of mash-up songs. The paper highlights the exclusive rights of authors and

audio recordings producers under the Jordanian Copyright Protection and Related Rights Law (No. 22 of 1992) and its

latest amendments in 2014. I will refer to UK, US, Australian and Canadian laws and case laws because there is no

judicial precedent in Jordan relating to mash-up songs, and Jordan as a developing country shall benefit from the

experience of other jurisdictions, in this field. One of the exceptions and limitations to exclusive rights, that is, fair use

defence was developed in England in the eighteenth century and the United States in the nineteenth century in Folsom

v Marsh case. Moreover, the Canadian Copyright Act (R.S.C., 1985, c. C-42) has recently added a “mash-up

exception”, therefore, it would be interesting to refer in brief, to the above exception. I will distinguish between the

exclusive rights of authors and audio recordings producers that are applicable to mash-ups. My aim in this paper is to

determine whether there are any exceptions and limitations to these exclusive rights. This article concludes by

recommending the inclusion of mash-up exceptions to the Jordanian law.

Keywords Copyright; mash-ups; songs; exclusive rights

Introduction and Background

The first Jordanian Copyright Protection Law was enacted in 1992, and it is based on “author's right”

system—“droit d'auteur”in French. The Law of 1992 cancelled the Ottoman Authors Rights Act of 1910

1

which was applicable in Jordan and other Arab countries under the Ottoman rule. The Jordanian Copyright

Protection Law has been amended several times,

2

the latest amendments taking effect in 2014, which

revised the title of the Law to “Copyright Protection and Related Rights Law”.

Jordan joined WIPO in 1972, and is party to the Berne Convention, since 28 July 1999.

3

Moreover,

Jordan became the 136th member of the World Trade Organization (WTO) on 11 April, 2000, a party to the

WIPO Copyright Treaty (WCT),

4

since 27 January 2004, and a party to the WIPO Performances and

Phonograms Treaty (WPPT),

5

since 24 February 2004.

Defining the Mash-Up

Mash-up

6

songs depend on two or more existing pieces of songs (Power, 2007, p. 579); they are often

created with computer software extracting the vocals from one song and the instrumentals track from

another, and combining them to create something recognizable and new at the same time.

(Barbagallo, 2010).

7

Mash-ups in general are not limited to audios; they could be videos created by

using different scenes from different films; texts made by integrating, for example, a zombie story into the

text of a famous novel, or images produced by adding, for example, one's own text to someone else's

photograph (Australian Copyright Council, 2013, p. 1). Moreover, the term may also refer to “web mash-

ups”(Reyes, 2011, p. 476) which means “fusing data from two or more Web applications to create an

integrated experience informed by the original data sources”(Palfrey and Gasser, 2007, p. 2).

8

However, I

will focus only on mash-up songs in this article, and the term “mash-up”will refer to “mash-up song”.

©2015 John Wiley & Sons Ltd 87

The Journal of World Intellectual Property (2015) Vol. 18, no. 3–4, pp. 87–106

doi: 10.1111/jwip.12033

According to Sanchez and Power, an audio mash-up is a category of sampling (Power, 2007, p. 579;

Sanchez, 2012, p. 5),

9

although there is a difference between mash-ups and traditional sampling. The latter

“consists of incorporating pre-existing sound recordings onto which vocals and other original material are

layered”; (Sanchez, 2012, p. 5) in contrast, mash-ups are consist entirely of pre-existing works and contain

no original material (Pote, 2010, p. 646).

The concept of the mash-up song is not new; the practice of constructing mash-ups dates back to the

beginnings of recorded music.

10

However, with the availability of digital technology via the internet, the practice of re-mixing pre-

existing works together to create new ones is continuous, growing, (Wellett, 2012, p. 349) and becoming

increasingly popular. In addition to technology, media attention is playing a significant role in the

increasing popularity of mash-up music (Eble, 2013, p. 666).

It should be noted that mash-ups do not require recording studios, and they are distributed via peer-to-

peer (“P2P”)file-sharing networks, which reduce the cost of production, distribution and advertising to

almost zero. In time, mash-ups were given their own TV show on MTV, and mash-up artists have become

more common, famous and richer (Lae, 2012, p. 32).

One example of a famous artist

11

whose musical creations can be c lassified as mash-ups is Gregg

Michael Gillis, known to the pub lic as “Girl Talk”(Eble, 2013, p. 662).

12

He started the Girl Talk

project in 2000 (Babka, 2012; E ble, 2013, p. 662). In order to cre ate a new song he uses clips from

dozens of other songs. For exam ple, on his third Girl Talk albu m, Night Ripper,he“counted up 167

artists that [he] sampled b latantly and a lot of the beats a re cut up percussion from other songs that [he]

would not be able to remember ”(Dombal, 2006). Gillis is not paying for the use of his samples, and he

never asks for permission (NPR Mus ic, 2008). Gillis also said that “I hea r from labels more often now,

and they send me a cappella CDs in th e mail. People are interested in ha ving their music incorporate d

into a Girl Talk live show or alb um. People are going to find out abou t new music through the stuff I'm

doing”(Ferris, 2011).

Musical Works Under the Jordanian Copyright Protection and Related Rights Law

Article 3 (b) (4) of the Jordanian Law protects works that are expressed in writing, sound, drawing,

photography or movement and, in particular, musical works whether digitized or not, or accompanied by

words or not. Under the law, musical works may consist of analogue or digital music, and may or may not

include words. Among other jurisdictions, Section 3 (1) of the UK Copyright, Designs and Patents Act

1988 (CDPA) and its amendments defines “musical work”as “a work consisting of music, exclusive of any

words or action intended to be sung, spoken or performed with the music”.

13

According to the definition of

the CDPA, words and actions are excluded, as they are protected by the legislation governing literary and

dramatic works. International conventions such as the Berne Convention for the Protection of Literary and

Artistic Works,

14

the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS),

15

the

WPPT, and WCT provided no definition of “musical works”. The nature of musical works has been

explained by the Court of Appeal of England and Wales cases as the follows: “[i]n the absence of a special

statutory definition of music, ordinary usage assists: as indicated in the dictionaries, the essence of music is

combining sounds for listening to. Music is not the same as mere noise. The sound of music is intended to

produce effects of some kind on the listener's emotions and intellect. The sounds may be produced by an

organized performance on instruments played from a musical score, though that is not essential for the

existence of the music or of copyright in it. Music must be distinguished from the fact and form of its

fixation as a record of a musical composition. The score is the traditional and convenient form of fixation of

the music and conforms to the requirement that a copyright work must be recorded in some material form.

But the fixation in the written score or on a record is not in itself the music in which copyright subsists.

There is no reason why, for example, a recording of a person's spontaneous singing, whistling or humming

Ramzi Madi Mash-Up Songs: Are There Any Exceptions to the Exclusive Rights

©2015 John Wiley & Sons Ltd

88 The Journal of World Intellectual Property (2015) Vol. 18, no. 3–4