The Role of Technology in the Historical Development of the Reproduction Right in Musical Works

• Jurisdiction: South Africa
• Pages: 233-287
• Author: Baloyi, J.J.
• Date: 17 March 2021
• Citation: (2020) 26(2) Fundamina 233
• DOI: https://doi.org/10.47348/FUND/v26/i2a1
• Published date: 17 March 2021

233

https://doi.org/10.47348/FUND/v26/i2a1

ARTICLES

THE ROLE OF TECHNOLOGY IN

THE HISTORICAL DEVELOPMENT

OF THE REPRODUCTION RIGHT IN

MUSICAL WORKS

J Joel Baloyi*

ABSTRACT

This contribution recounts the historical development and expansion

of the reproduction right in copyright in response to, and as a result of,

technological developments, with a focus on the music reproduction

right. It is shown how the very rst copyright statute, the Statute

of Anne, was enacted in response to the effects of a technological

development, namely the invention of the printing press, which had

been experienced over some time. To safeguard the interests of rights-

holders, the Statute of Anne gave rise to and was itself epitomised by

* BJURIS LLB (Venda) LLM (UWC) LLD (UNISA). Currently working as

Deputy Registrar: Governance at the University of South Africa (UNISA) on

a xed-term contract. The author’s permanent role is that of Senior Lecturer

within the UNISA College of Law. This contribution is based on parts of

the author’s 2019 doctoral thesis, titled The Copyright Protection of Musical

Works: A Historical and Contextual Analysis (LLD, UNISA). The author is

grateful to Unisa for awarding him the Academic Qualication Improvement

Programme (AQIP) grant, which made it possible for him to focus on the

completion of his doctoral qualication. E-mail: baloyjj1@unisa.ac.za

Fundamina (2020 – Vol 2).indb 233 2021/03/15 8:21 PM

(2020) 26(2) Fundamina 233

© Juta and Company (Pty) Ltd

J JOEL BALOYI

234

https://doi.org/10.47348/FUND/v26/i2a1

the reproduction right (the right to copy or print). The uncertainty with

regard to the question of whether the Statute of Anne applied only in

respect of books and other literary works, or whether it also extended

to musical works, was resolved in the case of Bach v Longman,

which extended the application of the Statute to musical works. It was

particularly in the area of musical works that the reproduction right was

further developed in the wake of rapid technological developments that

emerged at the end of the nineteenth century and have continued into

the digital age. This has led to the expansion of the music reproduction

right into a multi-pronged right, covering usages made possible by the

various technological developments, thus creating increased sources

of income for rights-holders. Using a historical and contextual analysis,

the contribution recounts these developments and their continuing

relevance today.

Keywords: copyright; reproduction right; musical works; technological

developments

1 Introduction

Music, it would seem, is as old as mankind itself. From the pre-

diluvian era, where we are told of one Jubal, who was “the father

of all such as handle the harp and organ”,1 and throughout the

centuries, music has always invoked deep feelings and emotions

amongst all. It has provided the necessary ambience for occasions

of celebration, mourning and ceremony alike, and its appeal has

been experienced equally by all. The legal protection of music is,

however, not as old.2 Although an account is given of how, in the

1 See Genesis 4: 21 in Hindson 2002.

2 It has been noted that Roman law recognised three types of rights, namely

real rights, personal rights and personality rights, but it did not recognise

intellectual property rights. Writings and letters were treated in the same way

as plants and things sown. Writing acceded to the owner of the paper on

which it was written, and painting acceded to the owner of the material on

which it was laid, with no protection for copying. Nevertheless, at times, some

recognition was given to “the value of the labour that went into the writing

or the painting”. See Ramsden 2011: 1, 3. To this, Dean 1988: 209 adds:

“Although even in the days of the Roman Empire reproduction of books

took place … no economic interest in such reproduction existed. Copies were

made to order and ‘publishers’ were not required to make any nancial outlay

or investment in advance which needed to be protected. … It was not until

the discovery of the printing press that there was any impetus to provide any

form of protection to publishers.”

Fundamina (2020 – Vol 2).indb 234 2021/03/15 8:21 PM

© Juta and Company (Pty) Ltd

THE REPRODUCTION RIGHT IN MUSICAL WORKS

235

https://doi.org/10.47348/FUND/v26/i2a1

560s AD, Dermont (Diarmed) MacMurrough, king of Leinster in

Ireland, uttered the famous words, “La gache boin a boinin”,3 as

he passed judgment regarding St Columba’s unauthorised copying

of Abbot Fennian’s prized psalter,4 the stage for the international

recognition of copyright would not be set until almost a thousand

years later. This ultimately happened around 1450, with the invention

by Johannes Guttenberg of the printing press using movable type

technology – a technology that disrupted the status quo.5 Prior to

that invention, the writing and copying of manuscripts had been a

long, arduous manual process, usually carried out by monks such

as St Columba.6

The signicance of the printing press for the development of

copyright law generally, and the reproduction right specically,

cannot be downplayed. Indeed, it was the emergence of this

technology that signalled the need for legal protection for those

who invested in the making and distribution of original works of

authorship, leading to the eventual enactment of the rst copyright

protection. This technology disrupted the status quo by making it

easy for books and other literary works to be produced en masse,

giving rise to the need to protect the owners of such literary works

from the unauthorised use of their works. At the same time, this

technology created new, broader markets for the commercial

exploitation of the works, which would be safeguarded by the legal

protection afforded to the rights-holders. Although it was to be

some 260 years later before the rst copyright statute, namely the

Statute of Anne, was enacted, these developments and the resultant

agitations set the stage for this eventuality.

3 Meaning “to every cow her calf”, and accordingly, “to every book its copy”.

See Birrell 1899: 42; also Patry & Martin 2000: 4.

4 This led to the pitched Battle of Cúl Dreimhne, in which it was reported that

many of the king’s men died. See Bailey 2009; and the Donegal Diaspora

website available at http://www.donegaldiaspora.ie/people/colmcille (accessed

21 Feb 2020).

5 See Dean 1988: 4, who notes: “The development of the printing press by

Johannes Gutenberg towards the middle of the 15th century was the event

which sparked off the beginnings of the concept of copyright.” See, in

general, Deazley, Kretschmer & Bently 2010: xvi. In addition to the invention

of movable type, “the emergence of a sense of individualism” and rapid

economic expansion driven by international merchants who organised annual

trade fairs are considered to be two other factors that “combined to turn

copyright into a legal issue”. See Frith & Marshall 2004: 22.

6 See Ramsden 2011: 3.

Fundamina (2020 – Vol 2).indb 235 2021/03/15 8:21 PM

© Juta and Company (Pty) Ltd