In amongst all of the comments I’ve received recently in response to my dialogue with Paul Birch, there’s been a number of interesting points that deserve pulling out and discussing further. The first of these is from Paul himself.
In response to the recent New Music Strategies post An IFPI & BPI Board Member Writes, there have been a lot of insightful and interesting comments — many of which raise interesting side issues that I’d like to extract and examine more detail.
One commentator remarked that since he’s not allowed to duplicate his CDs for backup purposes, he’d like to know who was going to replace them if they got scratched. This is where Paul re-entered the conversation.
He writes:
In response to Mark I actually think there is nothing wrong with making a copy for your own use, in a sense side-loading to an iPod or similar is an extension of that use. Under current copyright legislation there is a need for customers to be allowed that facility but without it giving rise to them then making multiple copies for sale. The very specific instrument that allows the one and not the other is the difficulty in drafting any amendment.
To tease this out, Paul seems to be saying that while it should be legal to copy one’s own discs for personal use, it has to remain illegal. The reason, he suggests, is that nobody has yet thought of a way to make it possible without also breaking the bit that makes it illegal for the real pirates to mass produce and distribute CDs for profit.
Really?
Okay, leaving aside for a moment the fact that this is entirely back to front, it does raise the interesting point that there is a problem of terminology.
Copying is no longer the problem — so copyright should no longer be the solution.
In fact, with digital media, copying just happens.
When you looked at this page, you made several copies of it without even meaning to. There’s one at your Internet Service Provider and another in the Internet Cache folder of your hard drive (Copy my website, will you?! Where are my lawyers?).
Copying is a natural condition of digital media — and what’s more, it’s great that it happens.
It used to be that the best way to protect a work (by which I mean keep it from being permanently destroyed, rather than this new doublespeak meaning it seems to have these days) was to lock it away from view in a vault where it could not be damaged.
Nowadays, the single best way to protect a work is to make as many copies as possible and distribute them widely.
So many great works in the Library of Alexandria were destroyed by a single fire — lost forever to history — and yet I know that barring a worldwide cataclysm, my modest little e-book will always endure, because there are so many identical copies out there.
That strikes me as unfair and kind of sad. But that’s the difference between old and new media.
So copying is not the problem. Distribution, on the other hand, well that’s something else. It should, of course, still be illegal for criminals to set up mass replication outfits, run off a few thousand copies of the new Madonna album and flog them off for £2 down at the local market.
Profiteering off the works of others without their consent is still wrong. But the copying bit is not the problem. It’s the distributing for money bit.
Thinking about this reminded me of an article I read about five years back. It’s a nice piece by Ernest Miller and Joan Feigenbaum called Taking The Copy Out Of Copyright (PDF / WORD).
I recommend you read it. Although I’ve seen some interesting and often convincing critiques of the document, it is the piece that started me seriously thinking about copyright reform in the first place.
Lawrence Lessig might have fuelled the fire with his Free Culture book (do nothing else till you’ve read it) and the Creative Commons — but the thing that first convinced me that copyright should be completely scrapped and entirely redrafted from scratch is that article.
Thanks, Paul, for reminding me of it.
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7 Comments
Laws on CD duplication seem to differ around the world. Where I live (Denmark), you’re allowed to make copies of your CDs for personal use. That is, you can have spare copies in your car, your cottage, or even use a copy as the one you play at home, so you wont wear down your original.
Obviously, reselling or redistributing the copies while keeping the original for yourself is illegal. But the distinction between those two situations don’t seem to present anyone with major problems. Not to say that we don’t have music pirates, but noone is really in doubt if what they’re doing is legal or not.
But, to comment on another point;
//One commentator remarked that since he’s not allowed to duplicate his CDs for backup purposes, he’d like to know who was going to replace them if they got scratched.//
I wonder, why is it that a consumer feels that he has a right to have his worn-down products replaced? If you buy an LP, and it gets scratched beyond the point where you like to listen to it anymore, noone but you is going to replace it. Heck, even if you buy a tshirt, and you grow out of it or wear it down in ordinairy use, you throw it away and buy a new one. You certainly don’t expect the original manufacturer to replace it for you.
In fact, I think that the law that allows us (lucky Danes) to take backups is a courtesy act. Probably a necessary one, and one that stops a lot of unnecessary breaking of a non-working law, and the ridiculous lawsuits that could come from it, but still, treating your own goods properly is a consumer responsibility.
Interesting points weather we have the right for cds to be replaced or not. Being a music enthusiast, my car is full of cd’s. I often copy them because they easily get damaged, I may also have a copy for my room and a copy in my box for djing because keeping track of one cd in my collection isn’t viable.I will also admit to receiving copied cd’s from associates because my line of work requires this. I don’t believe that this is an illeagal act, if I like it, I will buy it on vinyl or cd (rarely download).
The reasoning for the consumer to ask for a new copy is not because he is wanting a copy of the music for free, far from it, its purely because under the current legislative framework in many countries is its illegal to copy the music and implied that when you purchase a cd you purchasing the right to listen to it, if this was not the case then you would be the owner of the work upon purchasing a CD.
If your paying for a licence to listen to the track then there should be a scheme to replace the worn out media at cost as you have already paid once for the licence to listen in my opinion.
The music industry cannot have it both ways either we purchase the music or we purchase a listening licence.
The licensing POV is interesting, and appears valid. But for the sake of argument, one could also distinguish between the actual music, and the media it is delivered on. I can’t think of any valid analogy to that, though (which is how I usually deal with these kind of issues).
a few thoughts off the top of my head on this again….Did home taping kill the music industry? Is peer to peer sharing killing the music industry? Is illegal copying and selling of “hit” or “popular” recordings killing off those bands? I reckon all of the above are just another word for “pilot market development.”
Madonna may have her cds copied and resold by the mafia in Russia but if her management want to collect their “lost earnings” all they have to do (in my simplistic opinion) is tour the territory and get some proper local manufacturing and distribution that competes with the mafia lot.
Pirating will always exist but to be honest if you are into pirating music you will only ever want to spend time and effort on the cream of the crop, you want a fast turn around and you want to get rid of your illegal product as fast as possible. To this end I don’t think pirating really effects anyone other than a few acts and even then, it may only be in areas where a clear profit can be made at a low risk. Isn’t this just an indictaion of how and where said acts should sort out proper manufacturing and distribution so the market for illegal copies is not so lucrative? Illegal copying will always triumph where existing effective strategy has failed. Instead of going after people with the law, perhaps a strategic review is called for?
Instead of telling us all how illegal copying is really bad and people threatening to write letters to the university…..when are we going to hear the positive side about how illegal copying is helping to sustain the music business in areas that existing strategies haven’t reached yet and in ways that some members of the so called “industry” seem unaware of??
illegal action is not always a bad thing, sometimes it can do good things for everyone too. this is why I suspect that one day, this copyright law will have to change as it will benefit us all financially in the end.
mikhail alexandrovich left an interesting point there.
In what he said, existing strategies are not off putting enough to the music industry and people fail to realise the massive effect of illegal copyrighting, both for and against, any science fiction writer can come up with a dimwitted idea that might actually work. On the other hand, musical artists that have had their music ripped off but have become more widespread because of the illegal activities then they are going to be laughing all the way to the bank and faster because of this, who really are the artists that suffer the most from illegal copyrighting, is there a certain category that you can classify the whole ‘orderly-mess’ and spin offs under from this?
Nate
The problem with copyright as it’s currently interpreted by media companies and owners is that it bestows ownership and nothing else- and it should be for as long as possible. The original concept was to give the content creator a period of time in which he could recoup his investment and enjoy profits, before it became public domain. Just as patents do to this day.
Viewing copyright as ownership is a very limiting view. In that context, the value of the song ‘Yesterday’ is the same as any other song in Paul McCartney’s catalogue. I own them – that’s their only value. But if you think of copyright as a means of distribution, the value of ‘Yesterday’ (one of the most covered songs in history) is much bigger than any other song he’s written. IMO one of the benfits of P2P is that the job of distribution is being done by the enthusiasts to whom a piece of music is valuable; the more obscure it gets the less likely it is that a major media company has digitised it. The problem that still isn’t being properly addressed by those owners is how to monetise the activity.
There’s also the cultural benefit we get from the free distribution of music. There are academic studies and research that shows culture suffers with extended copyright – viz the current push by the UK music industry to extend it to 75 years. If 18 years is good enough for patents, why isn’t 50 years good enough for cultural IP?