The justifications for a music copyright

As we have seen, music has public good characteristics. Without any restrictions, music would be in the public domain and could be used without permission at zero cost. Thus, there is no incentive to produce music for economic ends. The introduction of property rights, therefore, allows composers and authors to control their intellectual property. According to Landes and Posner (2003: 12– 16), the possession of an intellectual property right “enables people to reap where they have sown” (Landes & Posner 2003: 13). The benefit from appropriating the returns from intellectual property has to be compared with the incurring cost. The cost of property rights are manifold. Landes and Posner (2003: 16– 21) identify (1) the cost of transferring intellectual property rights; (2) the cost of obtaining such rights; and (3) the cost of protection. From an economic point of view, the introduction of an intellectual property rights regime makes sense if its benefits exceed the cost involved.

The most important intellectual property rights in the field of music are copyrights. There are two different sets of justifications for a copyright of musical works: moral justifications and justifications based on non-alienable exploitation rights. The first important moral justification of copyright is that a composer and author has the right to the fruits of her/his works. The second set of justifications for a copyright of musical works is the Kantian assumption that a work is an extension of a person's personality. And the third moral justification is that it fulfils a society's obligation to creators for their contributions to increase welfare (see O’Hagan 1998: 78– 9). The moral justifications, especially the Kantian argument, play an important role in continental Europe copyright legislations. The three most common moral rights that are granted in European copyright laws – according to O’Hagan (1998: 84) – are (1) the right to be identified as the creator of a work that protects against plagiarism (paternity right); (2) the right to be protected against alterations to one's work (integrity right); and (3) the right to publish a work, but also to prohibit the publication of one's work (publication right).