Musicological and legal perspectives on music borrowing: Past, present and future

摘要

Music borrowing is a practice commonly employed by music composers whereby fragments of previously composed music are incorporated into new compositions. It is a practice that has been in use for hundreds of years, spanning musical genres and styles from medieval liturgical chants to rap, and yet the law relating to rights in musical works has yet to accommodate its ubiquity. The practice of music borrowing and the problems that it presents copyright law are highlighted by the recent case of Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd (2010) 83 IPR 582; [2010] FCA 29. This case offers a timely opportunity to examine the practice of music borrowing from the differing perspectives of musicology and law in order to understand the treatment - past, present and likely future - of music borrowing in Australian copyright law.