Is the Creative Use of Musical Works Without a Licence Acceptable Under Copyright Law?

International Review of Intellectual Property and Competition Law (IIC) 4 (2012), 401-426

26 Pages Posted: 10 Nov 2014

See all articles by Luke McDonagh

Luke McDonagh

LSE Law; London School of Economics and Political Science

Date Written: July 9, 2012


This article investigates whether the “creative use” of musical works, without a licence, is acceptable under copyright. In order to determine this issue, it is necessary to undertake analysis of copyright infringement with regard to musical works. Music, due to its own unique limitations, may be unsuited to a strict delineation of what may and may not be “copied”. For this reason, a general analysis of “creative use” of existing musical works, or portions thereof, is undertaken first. Reference is made to historical and contemporary examples of the practice, including examples involving European classical music, American blues, jazz and hip-hop, as well as British and Irish folk and popular music. Then, in order to properly explore specific cases of infringement of “musical works”, the notion of “musical work” under national and international law is examined. In line with this, the “idea-expression dichotomy” is also considered. Next, the jurisdiction of the UK is used as a case study for analysing the question of whether such an act of creative use is, in fact, an act of copyright infringement. The case of Newspaper Licensing Agency v Meltwater is stated to be important in this regard. Furthermore, the Meltwater case shows a strong influence from the decision of the Court of Justice of the European Union in Infopaq International v Danske Dagblades Forening. For comparative value, related cases in other jurisdictions such as France, Germany, the US and Australia are also discussed here. Importantly, the usefulness of using expert evidence from musicologists is queried.

Ultimately, this article argues that musical creativity requires a reasonable degree of freedom to make creative use of existing materials. At present copyright law does not properly encourage the practice of making creative use of musical works without a license; recent case law suggests that even the use of a very small portion of an original work may result in infringement. This is particularly evident in light of the Infopaq (EU) and Meltwater (UK) cases. Evidence from other jurisdictions shows similar conflicts arise not just with regard to works of music but also with regard to other creative works including works of literature and drama. It is argued that a more flexible approach to exceptions would encourage musical creativity. The possibility of a more flexible system of exceptions being brought into the UK is explored in the concluding part of this article.

Keywords: music, copyright, Infopaq, Meltwater, similarity, substantial part, infringement

Suggested Citation

McDonagh, Luke, Is the Creative Use of Musical Works Without a Licence Acceptable Under Copyright Law? (July 9, 2012). International Review of Intellectual Property and Competition Law (IIC) 4 (2012), 401-426, Available at SSRN:

Luke McDonagh (Contact Author)

LSE Law ( email )

United Kingdom

London School of Economics and Political Science ( email )

United Kingdom

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