World Intellectual Property Organization

Feeling groovy – Music therapy

September 2009

The notion that simply listening to certain kinds of music can also have a significant effect not only on mood but on medically verifiable health is one that is generating increasing interest. (Photo: iStockphotos.com)
The notion that simply listening to certain kinds of music can also have a significant effect not only on mood but on medically verifiable health is one that is generating increasing interest. (Photo: iStockphotos.com)

By Jo Bowman

The effect of music on the human spirit has been known for centuries. Its power to heal afflictions of mind and body, however, are only now becoming clearer. Journalist Jo Bowman reports that the commercial possibilities of new styles of music therapy raise complex IP issues.

It does not take an expert in either music or the mind to recommend a hot bath and some Pachelbel to help cure a mild case of stress. But a growing body of research being done around the world suggests there is a far stronger link than was previously thought between mental and physical health, and music.

Music therapy that encourages patients to express themselves by joining in and playing musical instruments has had well-documented success with people suffering from dementia, adults and children with learning difficulties, and in palliative care.

But the notion that simply listening to certain kinds of music can also have a significant effect not only on mood but on medically verifiable health is one that is generating increasing interest. There are those who suggest that in the treatment of some kinds of illness, a dose of the right music avoids the need for drug treatment altogether.

The power to heal is also the power to make money, and therapists, musicians and technicians succeeding in this field are not leaving the complex subject of intellectual property (IP) rights to chance.

Twice a day, after meals

Ms. Vera Brandes, a respected Austrian music producer, composer and academic, describes herself as the first “musical pharmacologist.” The company she co-founded, Sanoson, plans to launch a prescription-only course of music therapy she believes is so powerful in the treatment of disorders such as depression, that doctors may see it as a real alternative to drugs. The treatment will be available initially in Austria but later in other European countries and in the U.S. Patients will be given specially produced listening devices and a headset programmed with selected pieces of music. Their prescription tells them when to listen, and how often.

Director of the research program in music and medicine at the Paracelsus Private Medical University in Salzburg, Ms. Brandes says the music prescribed was composed by her and her team and is based on research on the neurological effects of different musical stimuli. The fact that patients tend to like the therapy makes them more likely to stick with it, she says – unlike psychotherapy, which has a high drop-out rate. “It does involve time,” she says. “Patients have to have at least half an hour a day when they can do this and nothing else, so it’s more time-consuming than taking a pill, but not more time-consuming than seeing a psychiatrist.”

Listening therapy is also at the heart of the launch in the U.S. this year of an Internet-based service by music research company Sourcetone. Director of marketing Luis Araten-Castilla says the company has been studying the effects of music on the mind for five years, working with scientists at Harvard Medical School.

The web service – currently available only in the U.S., although the company has global aspirations – allows users to listen to streamed music of their choice, rather like having their own iTunes playlist. None of the music is specially composed or recorded but, unlike a regular playlist based on album or artist, users choose the emotion they want to feel – calm, for instance – and can combine that with certain genres of music – so calm, plus jazz or hip-hop – and a playlist is created for them. “The music we play has a deep emotive quality and is selected for the kind of mood-altering experience we want to deliver,” says Mr. Araten-Castilla. He says such targeted listening can benefit those suffering from anxiety, depression, high blood pressure and memory loss.

Tuning in

In the Internet age, IP rights relating to music can be a contentious issue. Add to that specific ways of using or creating musical works – and special listening devices – and it becomes even more complicated.

Even using music that is no longer copyrighted is not without potential headaches. Professor Ruth Soetendorp, joint director of the Centre for Intellectual Property Policy & Management at Bournemouth University in the U.K., explains that using Beethoven’s Fifth in music therapy won’t infringe on the composer’s copyright, “but if it’s the Berlin Philharmonic’s recording from last year, you need permission for that.”

 

Is the music still under copyright protection?

When deciding whether music is still protected, one has to distinguish between the musical work and the recording. The work, that is, the composed music and the possible lyrics, is normally protected at least 50 years after the year in which the author died, in an increasing number of countries even 70 years after. The term of protection of the recording is normally calculated from the year in which the recording was made or published, and the term can vary between 20 and 95 years. In any case, it is therefore highly recommendable to check out the national law in the country where the music is used.

 

In sessions where patients change an existing musical work in some way, permission needs to have been granted by the copyright holder of that music. If it is Mozart, you are in the clear as it is no longer copyright protected. If it is Oasis, you need to ask first or risk breaching copyright.

Creating original pieces of music for therapeutic listening gets around the copyright issue, provided the composers commissioned to write the music assign copyright to the therapy company involved or agree to license the use of the music.

At Sanoson, Ms. Brandes and her team are going beyond copyright protection for the pieces of music they are inviting doctors to prescribe – they are seeking patents in the U.S. and Europe to protect the service they are offering.

“Listening to music to help people with depression is not new … but the whole model is completely new – how it’s presented, and all the elements that are included,” Ms. Brandes says. The patent applications, she says, cover the music, the therapy – called Music-Focused Auditory Therapy – and the listening device itself, which has a memory function allowing doctors to check whether patients are taking their musical medicine as prescribed. The device, which is rented to patients rather than sold, has other qualities not available in commercial music players, says Ms. Brandes, with a broader frequency range and different sound quality.

 

Obtaining rights for musical works

When using music outside the confines of the private home, and particularly in commercial contexts, it is normally necessary to obtain the rights of public performance, at least for the musical works. For most musical works this is done through national collective management societies which represent the overwhelming majority of authors of protected music. In the relatively rare cases where such authors are not members of these societies, or have been able to opt out regarding certain works, permissions for the use must be obtained directly from the authors or their representatives. Not all countries grant rights to performers and producers of sound recordings for the playing of their records in public places, but where this is the case, just as in the case of musical works collective management organizations frequently are authorized to manage the rights on behalf of most, if not all, the right holders.

 

Fair play

Prof. Soetendorp says protecting new forms of music therapy raises issues that apply to other forms of therapy and personal services. “You can’t patent a method of treatment,” she says. “You can’t patent ideas, and you can’t patent therapies. If you invent a wooden stick that could be used in a course of Swedish massage to give a deeper, more effective massage, that would be patentable. The notion of Swedish massage in itself is not patentable.” Not in Europe at any rate, though the laws on patents in the U.S. are far more flexible, even if only enforceable in the U.S.

The name of a type of therapy could, however, be protected by a trademark. Prof. Soetendorp says the creator of music that achieves a particular effect would be wise to ensure copyright on the music is widely documented, thus allowing the brand of the organization creating or delivering it – that could be protected by a trademark – to be promoted.

As a user of existing music rather than creator of its own, Sourcetone faces a different range of IP issues, not unlike those affecting online radio stations. The company pays royalties to artists whose music it uses, as do radio stations. Users listen to the music free of charge, and the site is supported by advertising. Mr. Araten-Castilla says royalty payments for online streaming are much higher – as much as double – per play in the U.S. than for terrestrial radio stations playing the same piece of music.

Unlike some popular web radio services that are fully interactive, Sourcetone’s streaming is designed with built-in copyright safeguards so that listeners cannot record the tracks and cannot rewind or select a specific track, click and play. What they can do is skip forward if they do not like a particular piece of music. While the music itself is not Sourcetone’s to protect, the software used to select and deliver the music – called Music Classification System Technology or MCST – is, and is patented. MCST, which takes into account rankings of how the music makes listeners feel, also analyzes features of music such as rhythm, the number of beats per minute and harmonies, to reach an “understanding” of the effect music may have on people.

The complexity of dealing with recording artists’ copyright in multiple countries, as well as the task of protecting their own IP, is hampering Sourcetone’s global rollout, Mr. Araten-Castilla says. The company is therefore looking at working with local partners in other markets to help it expand beyond the U.S.

Name that song

Meanwhile, in the U.K., where music therapy focuses primarily on encouraging patients to participate in creating music, there is a completely different set of IP rights to consider. The first, unique to the U.K. though soon to be introduced in Austria, is the legal restriction on who can be described as a “music therapist.” That title is protected by the Health Professions Council, whose minimum standards for registered practitioners cover the level of patient care provided and the standard of training and education required. Improper use of the title music therapist – or titles such as physiotherapist, dietician, art psychotherapist and radiographer – can attract a fine of up to £5,000.

“Music therapists in the U.K. have never said ‘we own music,’ but what we have been successful at is helping music to be used positively, safely and successfully in contexts where people can be very vulnerable, for instance if patients are non-verbal,” says Mr. Stephen Sandford, Chair of the Association of Professional Music Therapists U.K. “There are different schools you can train in to be a music therapist, but the registration means that no matter what the flavor of the therapy is, you know that your therapist will meet recognized standards of proficiency which will protect the public.”

The law covers only the term music therapist, however, and not “music therapy” – a point tested when U.K. station Radio 4 launched a comedy show called “Music Therapy” which it was deemed did not break the rules and was allowed to continue.

Sounds like a business plan

In the case of patients taking part in creating music, it is always possible that a session will originate a musical masterpiece with commercial potential. If that work is guided by a music therapist and involves a room full of patients, who, then, would own what?

Mr. Sandford says that in the British National Health Service (NHS), music therapy usually focuses on musical improvisation by patient and therapist, and can include composition and song writing techniques. Musical works created during therapy are treated as part of a patient’s medical records, which patients have the right to access. And, as in the case of saleable works created during art therapy, patients have the right to make money from their music.

Prof. Soetendorp says that, generally, copyright ownership lies with whoever creates and contributes to a piece of music. If a therapist leads a session but without actually making the music that goes on to become a chart-topper, they would not get a share of the royalties. “[Being an] inspiration is not really part of creation,” she says. “You get this issue in universities where researchers are working on things that perhaps lead to a patent. What’s the input of the professor; is there a joint patent?”

If a patient and instructor produce a work of music together then it is protected by a joint copyright if they have both had input, says Prof. Soetendorp. The law does not assign copyright to each contributor according to how much they have put into it. So, even if one does 90 percent of the work, the copyright is split down the middle. If the music was created by 10 people in a group therapy session and they all make a contribution, the copyright is split equally among them. Unless, that is, patients assigned copyright to the therapist or to their company, which then becomes a question of medical ethics rather than IP.

Acknowledgement Jorgen Blomqvist, WIPO, Copyright Law Division

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