Can you patent music?

Most people are aware that music is protected by copyright. Copyright is a form of Intellectual Property (“IP”) that allows the copyright owner to prevent an unauthorised third party from copying a substantial part of a protected work, for example a piece of music. The protection provided by copyright can be quite limited as only copying can be prevented. This means that a third party independently creating a piece of music that happens to sound similar, even if that music is inspired by an earlier copyright work, cannot be stopped if there has been no copying.

The potential for similarity without copying has resulted in some of the recent court cases involving high profile artists. In recent years Ed Sheeran has successfully defended an accusation that his song “Thinking Out Loud” copied the “heart” of the Marvin Gaye song “Let’s Get it On”, including its melody, harmony, and rhythm. Ultimately, the appeals court decided that the lawsuit sought “a monopoly over a combination of two fundamental musical building blocks” and that “neither the melody nor the lyrics” bore “any resemblance” to “Let’s Get It On.”

Due to the limitation that copying must be shown in copyright infringement cases, copyright is not considered to be a true monopoly right. IP rights that provide a true monopoly right include trade marks, registered designs, and patents.

If a piece of music is used in the course of trade to designate the origin of a product or service, it is possible to register the piece of music as a trade mark. Such a registration would allow the owner to prevent use of the same, or a confusingly similar, piece of music in connection with the same, or confusingly similar, goods and services. Some of the most well-known of these sound marks include the 20^th Century Fox “fanfare”, the Intel “five-note chime”, and the THX “deep note”.

Registered designs protect the aesthetic appearance of a product, so do not really apply to music, which leaves patents…

Patents are limited to providing protection for technical innovations. For music to be patentable, we need to consider whether music can ever be considered technical. Under normal circumstances the answer is likely to be no, but there may be special cases.

There is a growing body of research that suggests that the unique ability of music to convey emotion and create a sentimental response may not defy scientific explanation as previously thought. This research has inspired an interest in the application of music for the enhancement of cognitive processing and treatment of symptoms associated with some of humanity’s most pervasive diseases. The result is a new wave of technology, often using artificial intelligence, to understand how music produces these effects, with the intention of developing music as a therapeutic alternative to some pharmacological treatments.

Advances in cognitive neuroscience suggest that neurochemical changes within the brain—specifically activation of the mesolimbic and mesocortical pathways (also known as the pleasure and reward pathways) which constitute the mesocorticolimbic system—are responsible for the way in which music alters our mood. The mesocorticolimbic system extends from the ventral tegmental area (VTA) through the nucleus accumbens (NAc) to the prefrontal cortex. It is thought that dopaminergic neurons in the VTA are activated in response to music, and that their projections to the NAc and prefrontal cortex result in the release of endogenous opioid peptides which produce feelings associated with pleasure.

Many of us are familiar with the frisson that can arise when listening to an especially emotive piece of music. This sensation is associated with a significant increase in cerebral blood flow within the structures which comprise the mesocorticolimbic system, and the intensity of the sensation correlates with the amount of dopamine released as a result. Studies even suggest that this sensation may be inhibited under administration of the opioid antagonist, naloxone, providing further evidence of a causal link between the release of endogenous opioids and this heightened sensory experience.

This understanding may help to explain the particularly interesting observation that patients instructed to self-administer morphine to relieve post-operative pain whilst listening to music used significantly less of the drug than a control group. This suggests not only that music has the capacity to cause pleasure, but that it may be able to activate the mesocorticolimbic system sufficiently to induce pain relief. With the knowledge that the neural network activated by music is also stimulated by more conventional, well-understood stimuli, such as psychostimulants, the idea that music may, at minimum, act as a complementary mode of pain relief does not appear to be so far-fetched.

Aside from exploring the potential for music as an analgesic, much research has been carried out to better understand how it can be used to reduce stress—a particularly worthwhile endeavour given the causal relationship which has been established between chronic stress and diseases including cardiovascular disease, Alzheimer’s, and depression.

Several neurochemicals mediate the stress response within the body. These include glucocorticoids (for example, cortisol), which regulate metabolism and immune function, and catecholamines (norepinephrine and epinepherine) which induce cardiovascular changes. Prolonged, elevated levels of glucocorticoids have been shown to weaken the ability of cells to resist injury, thereby increasing their vulnerability to the effects of toxins and attrition, and it is thought that prolonged, elevated levels of glucocorticoids promote an undesirable chronic state of low-grade inflammation.

Non-rhythmic “meditative” music has been shown to significantly reduce plasma levels of cortisol and norepinephrine when compared to silence, and listening to “relaxing music” (generally considered to have slow tempo and low pitch) when in a post-operative state has been shown to result in a significantly greater decrease in serum cortisol compared to controls. One study has even compared the effects on pre-operative anxiety of benzodiazepine to relaxing music compiled by a licensed music therapist—both baseline anxiety and heart rate were reduced significantly more by the music than the drug.

One proposed mechanism for the ability of music to regulate stress is that music modulates reflexive brainstem responses which mediate measures including heart rate, pulse, blood pressure, body temperature, skin conductance and muscle tension. Through cerebellum activation, the brain synchronises neural oscillators with tempo thereby altering these parameters. It is this mechanism that is thought to generate the unconscious “groove” felt when listening to music: the brain starts to predict when the next strong beat will occur.

Medimusic is one UK-based company which has taken note of the numerous benefits listening to music is thought to have on the body, and—using data analytics, AI and machine learning—is determining the causal link between various musical features and the brain’s response in order to create playlists that have the capacity to function as a precision medicine. It is exciting to see this technology develop, and to discover how accurate a medicine could be produced and how far-reaching its therapeutic effects could be.

There are already patents that have been granted for the use of music based on these sorts of studies, for example:

US8388512 which specifically relates to the use of music as a therapy. Dating from 2009, this patent describes playing to an individual an activating or de-activating composition at particular times of day based on their natural chronobiological rhythms to strengthen such rhythms and thereby support emotional and cognitive regulation.

US10556087 which describes enhancing music with rhythmic cues to assist a user when they are carrying out certain activities involving a repetitive motion.

These patents protect the use of music in general as a therapy rather than protecting a particular piece of music. However, as our understanding of the way in which music interacts with the brain evolves, there seems to be an increased potential for a particular piece of music to be created which is specifically designed to elicit a particular response and so provide a particular therapeutic benefit. Such a therapeutic benefit may mean that the piece of music could be patented, so it may be only a matter of time before we see patents that protect particular musical compositions.