Ministry of Sound v Spotify: does a DJ’s intellectual creativity deserve protection?

Ministry of Sound gold logoThe creation of the Ministry of Sound (MOS) nightclub in 1991 was with one goal in mind: the perfect clubbing environment: “100% sound system first, lights second, design third“.

This eventually led to the, originally teetotal, nightclub becoming the first major clubbing brand.  Since then, it has exploited the portcullis logo to a point where its appearance alone on the sleeve enables it to sell records.

It is now reported that MOS is suing Spotify for breach of its intellectual property rights, specifically those in the track listings of its albums.  The genesis of the dispute stems from the ability of Spotify users to be able to create “playlists” from tracks so that they may correspond exactly to those on the MOS albums.  MOS faces two big hurdles:

1. The selection of tracks in a certain order is specifically excluded from protection as a database right pursuant to recital 19 of the Database Directive.  That states:

Whereas, as a rule, the compilation of several recordings of musical performances on a CD does not come within the scope of this Directive, both because, as a compilation, it does not meet the conditions for copyright protection and because it does not represent a substantial enough investment to be eligible under the sui generis right.

2. The Court of Justice of the European Union has repeatedly stated that databases created without any intellectual creativity attract no protection, no matter how much ‘sweat of the brow’ has been invested (see C-5/08, InfopaqC-145/10, Painer and Case C-604/10, Football dataco Limited and others v Yahoo! UK Limited).  Any principle that holds otherwise is therefore inconsistent with European law.

However, the artistic skill of a DJ in the creation of a set or album should not be under-estimated.  Those intricate compositions by the likes of Sasha, Digweed and Papa Sven the ingenuity and expression of phonic finesse should be locked down.  The carefully selected and sympathetically synchronised tracks cannot be crudely recreated by tagging them in a playlist.  Much like the conductor in an orchestra, it is the co-ordination, timing, mixing, key selection and the introduction of additional sonic effects as well as the track selection which sets one DJ’s talent apart from another.  That intellectual creativity ought to be protectable as a matter of cultural interest.

We’re only just far enough along the path to reflect on the contribution of rave to British music culture.  Let’s hope we can still do so 20 years from now.

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