How long should music copyright be?

This one’s easy. I’ve been saying this for a while now, and it never fails to get me into an animated discussion. I’ve listened to all the arguments, read all the reports, heard convincing arguments about copyright extension and for complete overhaul of the copyright system.

And I’ve come to the following conclusion: The ideal term of both recording rights and composer’s rights is five years.

That’s right: Five. Not 95. Not 75. Not 50 or 25. Five. That number again: 5.

Arguments
Now, we could get into a long discussion here about the purpose of copyright being a way to incentivise creativity.

Or that extended copyrights prevent orphaned works from entering the public domain.

Or that music is not simply commerce, but is more importantly culture.

Or that copyrights should not be a way for businesses to continue to exploit artists’ work decades after they have moved on to other things.

Or that musicians should have the right to earn from their creations forever.

Or that record labels take such risks, they should be allowed to continue to reap the reward of their investment.

All seemingly sound arguments, when looked at from a particular point of view. But I’m not even going to engage them in debate. In one sense or another, they’re all right. But there’s something more fundamental at stake here.

Blanket licensing
The core assumption is that when a copyright term is decided upon, that’s the copyright term for all things in all circumstances. And those who want copyright terms extended (usually corporate organisations sitting on vast mountains of back catalogue) generally get their way on these matters, as happened in Europe recently.

But the problem is – that doesn’t suit everybody. Least of all the audiences and creators of content who want to build, share and engage in culture.

How it works
What I am proposing is a 5 year renewable term of copyright. All works are registered at the point of their creation. In five years time, if there is still commercial potential that the rights owner wishes to make use of, then that person or organisation re-registers the work.

And they can renew it again after another five years. And so on.

Cliff Richard can still use royalties as a kind of retirement deal if he wants to. But works that are not considered economically viable properties by their owners can enter the public domain and become part of the rich tapestry of human culture, for use in independent films, hip hop samples – or whatever else.

But most importantly, this happens automatically. Inactivity at the five year mark will lead to the default position of public domain – not the default position (as is currently the case) of ‘you can’t use this’.

The technology to make this happen is simple and readily available, and with an open database of works, clearance would be greatly simplified and re-registration a very straightforward procedure (comparatively speaking).

Most importantly
It’s estimated that less than 2% of all music that has ever been released in a commercial format is currently for sale in any way, shape or form. That 6-million tracks thing that iTunes goes on about is hardly even the tip of the iceberg.

But long-term blanket licences prevent people from lawfully accessing that other 98% of music and breathing new life into it.

One stipulation I’d add to my renewable 5-year term is a ‘use it or lose it’ clause. If you have a registered work and you do not make it available to the public in a commercially available fashion during a 5-year term, then you lose the right to renew that licence.

Stockpiling creative works just to hoard them, without making them available to the public, loses you those works next time around.

Just think of all the amazing collections and compilations that would be available to listen to and explore if the archives were opened up as public domain for independent entrepreneurs to work in niche areas of music that the majors had just been warehousing because they didn’t consider it economic to re-issue and release.

Talk about your Long Tail

The problem (mostly) solved
Current blanket copyright terms ‘protect’ (I use that term in the sense of ‘racket’) copyright owners so that they can continue to be paid over and over again for work they did years ago. It prevents anyone else from making money out of works that have been shelved.

It does not, in any real sense, ‘incentivise creativity’.

A five year renewable copyright term for recorded works and for compositions allows for people to continue to earn from their works, encourages the development of under-utilised assets, pours far more music into the public sphere for the good of culture, and provides opportunities for enterprise.

It doesn’t fix the fact that copyright law is still based on an old technological environment, and simply doesn’t work in the online environment – but getting that term thing sorted out would be a great start.

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120 thoughts on “How long should music copyright be?

  1. bob says:

    Benjamin Krueger -

    you are correct in many respects regarding the industry, change or essentially die. And the copyright law now as it stands is imperfect but it does serve a purpose, and not for evil (mostly) i don’t think.

    with respect to your comment about the “industry”, i work on the digital side and am somewhat of a newbie.

    But i will say this, i think “free” sells. If you give someone a free song or songs and they like it, they will more often than not, come back and buy the rest if given the opportunity to. But what i don’t agree with is doing away with the ownership of that ability to give away songs. Copyright protects the creators, however imperfectly that is, to ensure that they receive, in a perfect world, fair and just compensation for their tangible creative output. That’s all that i care about.

    As far back as the origins of recorded music musicians have been screwed out of their fair compensation. That’s why we have PRO’s, publishers etc. Now is it a perfect process, no but do i want to rest my copyrights on the gatekeepers of what is “economically viable” under a 5 year copyright law? hell no. I feel the same thing about WEB 2.0 companies selling for millions of dollars on the backs of the content that has been licensed to them and the musicians and labels seeing none of it. (not major label stuff either, mostly indie).

    Say what you will, i’m not about litigation, or the RIAA chasing down and suing people, but I am for writers and creators of content seeing their fair shake.

  2. Jon Smirl says:

    The record industry just doesn’t get it. The pile of 5-10M tracks they are sitting on could be used to build one of the top Internet sites on the planet. Let the consumers download and stream for free. Provide them with band home pages and all kinds of pretty meta data. Open up sections for fan clubs. Quit putting up a pay gate – instead sell signed vinyl, concert tickets, etc – physical objects. Collect demographics (for sale to other companies) and put targeted advertising all over the site. Create a monopoly by suspending licenses to all other music sites.

    Facebook is worth over $6B. This site would probably be worth $10-15B.

    Instead they’re frittering away their value with Rhapsody and iTunes. Apple’s stock is where it is because the record industry was too backwards looking to capture that value itself.

  3. Benjamin Krueger says:

    I build a web based video distribution business that allows any content creator to upload and distribute their video for free. I invest my time, I risk my money, I work for years to create something all the while offering a free service of value to creators. Creators take advantage and partake of the value. In fact, 10 million of them do.

    My business WebVideo.com sells for 100 million dollars.

    I’m having trouble seeing what, exactly, the sweat of your back did. Was it too burdensome for you while you were taking advantage of a free distribution and marketing system? Did you license your work to them for distribution without getting something in return? As near as I can tell, you got something of value and now you’re angling for more. That isn’t about fairness or morals, that’s just greed.

    Is WebVideo.com worth a million dollars because your video happens to be on it, or is it worth a million dollars because of my work, marketing, business management, and the valuable service it offers to content creators?

  4. Benjamin Krueger says:

    As for artists getting “their fair shake”, I say good for you! That’s my goal too! I believe that artists need to take control of their business and make sure they get their fair shake. Even in the old system, the hardest workers were the most successful. Paul McCarthy works hard, and it shows. Peter Gabriel works hard, and it shows. Pearl Jam works hard, and it shows. Find new ways to monetize your work. Play shows in places that make you happy, and make you money. Sell merch. Capitalize your talent. Become the world’s foremost waterpark music designer. Specialize in creating compositions for rich old women. Whatever it is, your fair shake is not going to come from a law. Your fair shake is going to come from your ability to be a successful artistic business.

    But please don’t ask the rest of us to deprive our culture and economy just so you can sit on an artistic work waiting for the slightest chance that someday someone might want to use it, or to ensure that if you do happen to go world-wide superstar you get paid for life. Not only are either of these situations incredibly unlikely, but they are only becoming more unlikely by the day as more creative works are generated and more artists enter the fray.

  5. bob says:

    Benjamin Krueger -

    Like i said, i wish you well. no irony intended. we disagree, that is fine. I truly like a world in which my opponent is smart and engaging. But me trying to convince you of my beliefs, and you trying to convince me of yours, is like trying to convince someone that your religion is the “better” one and vice versa.

    But to answer your question to your video post: as long as there were no “infringing” videos and you sold your business, fine. You created a platform that helped videos get distributed. But without legal content that was bound by copyrights and contracts, it would still be just an idea, and not a business, which again bolsters my point…that copyrights are necessary.

  6. Benjamin Krueger says:

    Thanks Bob.

    I should point out that neither Andrew or myself or most of the people commenting here are advocating for the abolition of copyright. Just an overhaul that makes more sense for everyone going forward given our observations of the past.

  7. bob says:

    Benjamin Krueger -

    I just saw your 2nd post after i posted my response to your video post. I would say that i know you don’t want to abolish copyright, just neuter the law as it stands now to 5 years. Neutering may not be bad but 5 years is too short IMHO.

    But to answer your 2nd post above, i’d say all of those artists had sales well over 5 years, with down times, but could only have prospered by lengthy copyright laws, if not i’d be hearing “ring of fire” to sell me Preperation H.

    we’re not that far apart really, it’s just that most of the rest of the world doesn’t have access to legal recourses or access to technology the way both you and I do. and to say someone who is creating music in their bedroom shouldn’t have the same rights of ownership as a Pearl jam or Paul McCartney etc, in the western world, i find ludicrous. Their intellectual property should be protected.

    I think now more than ever people are waiting for the “big” payoff if someone approaches them for a licensing deal, but honestly, if i were a movie maker and wanted a song i couldn’t get, i’d record something that’s similar myself and use it if the copyright owner was being a d**k.

    All I’m saying is, the system aint perfect, but I’d rather have it for 70 years + the life of the author as opposed to 5 and having someone deciding what is or is not “economically viable”. I don’t like gate keepers, but i do like laws that have a term limit.

  8. bob says:

    Benjamin Krueger -

    basically it’s about choice. the choice to do or not.

  9. karen hunter says:

    Tentatively now ………… this sentence jumped out………

    BOB saying “it’s just that most of the rest of the world doesn’t have access to legal recourses or access to technology the way both you and I do”

    Which reminded me of my earlier thoughts – and my earlier comment – which was

    “I suspect that what ever changes in legislature are made, they will all invariably empower the same kind of people in the end, unless we start including concepts of ‘ethics and respect’

    but I was told I was off topic so have been quiet -

  10. @DaveX

    “I’ll admit that all I see from the public domain is crappy old cartoons on dollar DVDs at Wal-Mart, and freely downloadable 78s at the Internet Archive that I could usually care less about– in other words, even with an increase in public domain material, will anything worthwhile be done with it?”

    That’s exactly the point. The public domain is almost useless because hardly anything goes into it anymore. Even twenty years, the content industry gets another extension. If you don’t see anything useful in the public domain, that’s an argument for a revision to copyright so that valuable culture can actually get there one day.

  11. DaveX says:

    Blaise–

    What I meant is that it hasn’t really been proven to me that public domain works have been good for much, beyond crappy DVDs and curious downloads. All I see is that some OTHER company ends up releasing the material– where’s this incredible body of work springing from the public domain everyone keeps yakking about? What has been done with the public domain to make anyone think this is the direction unlocking these works will take? All I can picture is scavenger companies releasing detritus in increasingly shoddy packages– perhaps to some overseas market, who hunger for practically anything American. Boring!

  12. where’s this incredible body of work springing from the public domain everyone keeps yakking about?

    Locked up with perpetual copyright.

    All I see is that some OTHER company ends up releasing the material

    What’s wrong with that? Look at how publishers compete with classic literature in the public domain. Anyone can print Shakespeare, but the competition get publishers to innovate in the presentation. Some will offer new translations, or attempt to improve the footnotes, or provide relevant commentary before or after a play, or bundle a couple plays together… Far from “shoddy packages” of stuff no one wants, this is a vibrant public domain market.

    To build on the Shakespeare example, a lot of *new* art is created on the backs of existing works. Shakespeare was notorious from borrowing from other plays. But he made the stories timeless, he delivered them in a way that changed our world forever. Had he not been able to build off existing works, we would not have that same art.

    Also, companies like Disney started out by building on the ideas of others. There’s concise summary at the start of this post. We wouldn’t have Mickey Mouse if everything was locked down with copyright then.

    Think about all the classical music used in Disney and Warner Brothers cartoons. Why do you think it was used? Because it was in the public domain.

    Think of all the art that’s not being created because old, orphan works are being locked up in perpetual copyright for the sake of a few hits and not entering the public domain.

    Aside from innovations that occur in distribution public domain works, you seem to completely miss that the public domain is ripe material for creating derivative works. Cultural works in the public domain are free in the sense of freedom, which facilitates a free culture where people can build on the ideas of others, as opposed to the permission culture filled with legal barriers that envelope copyrighted works. (And keep in mind, Dubber’s proposal is far from a suggestion to eliminate copyright for those who still want it for their works.)

    All I can picture is scavenger companies releasing detritus in increasingly shoddy packages– perhaps to some overseas market, who hunger for practically anything American. Boring!

    You need on work on your observation and maybe your imagination. ;)

  13. Hi everyone:

    For those interested in an academic approach to this issue, there is a paper I read a few years back by Ruth Towse. Its called ‘Copyright and Economic Incentives: An Application to Performer’s Rights in the Music Industry’. I’ve pasted the abstract below.

    I’d post the whole article, only its protected by copyright.

    Jon

    This paper contributes to the economic analysis of copyright in three ways: first, it draws a distinction between the general purpose of copyright law and the administration of the royalty system of payment for the use of copyrighted material; this leads to the principal-agent analysis of modes of payment. Secondly, this approach is applied to a specific topic, the change in copyright law in the form of the introduction of a new property right for performers in the UK that has come about as a result of the harmonisation programme of the European Union. Finally, new data were collected to assess the likely impact this change in law would have on performers’ earning using the music industry as a case study. This is novel because there has been no previous attempt to apply empirical evidence to the analysis of copyright law. The paper therefore provides a framework for evaluating changes to copyright law. Copyright 1999 by WWZ and Helbing & Lichtenhahn Verlag AG

  14. Nancy Prager says:

    Andrew,

    Thanks for posting a thoughtful response to my analysis of your proposal on my blog this morning. The comments on this blog support my position that calling for a 5 year term detracts from a substantive debate on the steps necessary to reform copyright. For one thing, the term is never going to be lowered to 5 years, renewable or not.

    However, there is another element of your post with which I completely agree and has received few comments, a call for formalities.
    To implement a system for renewal of copyrights, whether the term is 5 years or 50 years, would require formalities. Unfortunately, formalities are currently forbidden under the Berne Convention. (See, http://nancyprager.wordpress.com/2008/05/20/fundamentals-of-copyright-lost-owners-and-audience-participation/)

    Formalities would alleviate many of the complaints about the current copyright system, because those works that people wish to cede to the public domain could be while those who want to protect their work (even if there is no commercial purpose) could.

    Again, thanks for the response to my response :-)

    One area of your proposal with which I completely agree is that perhaps the lack of formalities for obtaining, securing and maintaining a copyright has

  15. So OK, let’s suppose I make chairs. If I make a chair for my personal use, I own it and get to do what I like with it. However if I sell a chair to you it becomes your property, you get to do what you like with it and I no longer have any say in the matter.

    But some people here say, “I own my music and even if I sell it to you I still get to dictate how you can use it”. This, to me, means you want your cake and eat it!

    So OK, maybe I don’t want to sell my chairs, maybe I only want to rent them to you. This way you only get to use them in ways I choose to allow you to. That sounds a lot like how music is “sold” at the moment – you’re actually only renting it to me!

    Which sounds fine, except that the public doesn’t think they’re renting music, they think they’re buying it! In fact they don’t just think it, you’re telling them you’re selling it to them, when in fact you’re only renting it to them – no wonder they think they’re getting a raw deal!

    Moreover, suppose you want to buy a chair and I refuse to sell you one, because I only want to rent them? Suppose then someone else opens a chair shop across the street and *is* selling them – what would you do? Of course you will go buy a chair from the other bloke! And I, in my stubbornness, will go out of business.

    Did I say that the public don’t know they are only renting music? I should have said they *didn’t* know – the key point, of course, is the secret is out – thanks in large part to the internet as well as the music industry’s increasingly strident attempts to protect their rights. And people *are* saying “wait-a-minute … we want to *buy* music, not *rent* it”.

    So you should think of Copyright as a sort of “rent-to-buy” arrangement. You don’t *have* to, of course, you can continue with the idea of perpetual rental. However it’s only a matter of time before someone opens that shop across the street …

  16. Another thought, this time more directly relevant to the topic of Copyright terms…

    What if one applied the principles of the Free Market to Copyright terms? Suppose a musician decided that he/she can make a profit on a particular work over a term of x years. He/she would then make a legally binding guarantee that the work will enter the public domain at the end of that term.

    This might then introduce competition into the mix. Assuming the public places value over how quickly music becomes public domain, Copyright terms would naturally tend towards the minimum over which it is possible to make a profit. In fact they might tend towards zero if some of the alternative business models that don’t rely on Copyright work as their advocates hope. However if these business models prove not to work, then no foul ;-)

  17. Hi Mr Dubber,

    We read your debate with interest. If you get a chance, spin over to our blog and see what you think.

    Basically, copyright works fine for us as it is, we can choose whether we give product away, license it to someone to use or sell things. We want to retain choice and current law allows for that.

    Respect from the Music Insight team

  18. Dubber says:

    With respect – though music copyright works (after a fashion) for those who wish to make money out of their music right at this moment – which is great and I’m all for that – it doesn’t work in any other way, and it doesn’t fulfill its primary function of incentivising creativity and contributing to culture.

    My point is that the means by which it attains its goal has become its primary goal.

  19. David Hooper says:

    I think a shorter copyright term is great, because it would force people to keep creating, rather than kick back and live off something forever.

    However, it also doesn’t really value creation of something. Five years? I feel that’s a bit short. Sometimes it takes that long for a song to take off.

  20. Jayen says:

    This sounds very ambitions :) but i think for the most part i agree.

    I really had no idea that only 2% was actually for sail, although i guess i should have guessed. We really have to do something about that, i as a video maker (just a hobbie) would certainly benefit from it and so many other youtube artist as well not to mention the indi film makers etc as you mentioned and more importantly we’d be able to breath new life into these lost tracks.

    Although i do wonder if 5 years if enough time for an artist to be really sure whether a track will be commercially viable in say 10 or 15 years down the road and if the 5 year copyright renewals were expensive it might be hard on poor artists, still i know nothing about this industry so i can’t really have an opinion.

    Jayen