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 Comments
Funny to think that patents, used by big companies in industrial contexts, are (as far as I remember) limited to 20 years. What you call “use it or lose it” is also built in the patent process, by the way.
I’ll have to agree with this.
Andrew’s probably mentioned this before, but there is a fantastic book that Lawrence Lessig called Free Culture that deals with the absurdities of current copyright law. Also, it’s available as a .pdf under a Creative Commons license.
http://www.free-culture.cc/freecontent/
I couldn’t agree less. Our 700 plus tracks that we have written, produced and recorded are what we are living from. I’d get mad if I had to check every track for copyright renewal.
Sometimes track are sleepers. We once composed something for a customer, but he didn’t like the track. So we took it back. Some years later, a tv producer was looking for music for a yoga series. We sent him a lot of tracks, but he didn’t like them. Finally I remembered the track that we had taken back, and sent it to him. It was exactly what he needed. That track earned us € 30.000,- over the years.
I must be an idiot if I want to cut down copy/publishing rights.
I still don’t get why everybody wants to pay the plumber but not the artist.
One more thing: What happens, if after 5 years, a track is not copyrighted anymore, and a part of the track is used as a hook / sample for a track that becomes very successful. How do you think the creator of that sample feels, when somebody else earns money with his creation?
I’m very happy and proud to be a member of a powerful publishing rights organisation.
1) If you make your living from 700 pieces of music, and your job once every five years was to log in to your database, ‘select all’ and press ‘re-licence’ – that doesn’t seem like such a hardship. Even if it took all day.
2) Putting together compilations of your music for commercial licencing surely constitutes ‘use’, and so the ‘use it or lose it’ clause wouldn’t kick in – though here’s probably the area that would require the most negotiation: those rightsholders who do not release music for commercial sale, but use it exclusively for sync and library music.
3) If a piece of music goes out of active use, and falls into the public domain, that allows for part of that track to be used as a hook or sample for a track that becomes very successful. And that’s good. In fact, it’s kind of the point.
In visual arts, this would be called collage. It would be people making culture out of other culture.
If you make a piece of music, and it is of no further commercial value to you – and once it goes public domain, someone uses your hook – you have lost nothing. You’ve contributed – but this was not going to have happened unless the song was public domain in the first place.
In other words – you exhausted its commercial potential as far as you were able to see – and then released it into the wild. Then someone else picked it up and found a whole new commercial potential. This is a good thing. You might be kicking yourself for not thinking of that particular avenue for return – but on the grand scheme of things, this is better for culture.
If you still wanted to earn money off the track – then work on ways to keep it in play and commercially available. 5 year term incentivises creativity and encourage active management of rights assets. Virtually permanent copyright prevents new tracks like the one you describe from ever being created, it encourages hoarding and it’s bad for creative and intellectual life.
In other words: I’m totally in favour of artists making money from their music. I don’t think that trumps the public good, and I don’t think that preventing people from using music in perpetuity ‘just in case’ contributes to culture.
Copyright is also a means of reducing the supply of music and trying to force us to consume new works. It’s a crime against culture that only 2% of music is in the public domain.
Make the renewal fee $1,000/track every five years. If a track can’t make $200 a year it doesn’t deserve a continued copyright If the fee is small millions of copyrights will be renewed simply to keep the works out of circulation.
IMHO artists can keep the 5% of music that is making money. The crime is in automatically locking up the other 95%.
Peter Blue,
I just had a look at your website. No Credits on the photos on your front page, to quote you “How do you think the creator of that sample feels, when somebody else earns money with his creation?” The copyright at the bottom of your page says it’s all yours. I guess that doesn’t include photographers.
I also notice that you are claiming copyright on CD Baby’s shopping cart, some how I think that they might have an opposing view on that.
Yes I am being petty, but if you are to lazy to credit the copyright of the “creative” people who are supporting you, why should anyone care about your rights. Address your responsibilities first by acknowledging the people’s shoulders on which you stand and then maybe we can have a discussion about your “rights”
You might also like to explain how quoting “Santana, Peter Green, Larry Carlton, Robben Ford,Booker – T, Jimmy McGriff, Pink Floyd,” in your meta tag keywords relate to your “rights”
You still don’t get why everybody wants to pay the plumber but not the artist. Surely you do.
In my last comment, I responded to Peter’s concern about another artist using a sample for a hook in a new song, once the original work has entered the public domain.
As I wrote it, I was grasping for a phrase to encapsulate what I was trying to express.
The phrase is: that this would enable the creation of works that “exceed the imagination of any single creator”.
It was in this video all along.
What a horrible idea.
I am usually a big fan of your writing but I have to disagree with you strongly on this one.
A few points.
1. Artists and songwriters have a pretty low ratio of work to income. ie lots of work, very little income. Sometimes works sit on a shelf for a long time, untapped, and then become useful. That doesn’t mean that the work that was done 10 years ago is valueless, in fact, you’re saying that the value should automatically belong to “culture” which sounds very much like “the people” which usually means “the government.”
I don’t see how giving away someone’s work because they fail to register with a government entity would be incentivizing anybody other than vultures swirling around who want to release things and sell them without paying the people who made them. Sure you might get a few mash-ups that don’t make much money, which is why creative commons licenses exist, if the creators of the work wish to use that.
2. ” If you make a piece of music, and it is of no further commercial value to you – and once it goes public domain, someone uses your hook – you have lost nothing. You’ve contributed – but this was not going to have happened unless the song was public domain in the first place.”
This is simply untrue. Lots of recordings sit in flea market dustbins, get sampled by producers or DJ’s and then make lots of money for all parties. The DJ and the writer of the hook. You are suggesting that the writer of the hook (often upon which an entire song is based) should receive nothing for this?
Creative works don’t have to be in the public domain to be used in other works. Both the original creator and the one who alters the work to create a new one can still get paid from the new work.
3. In the US, copyright law was rewritten in the 1970′s so that creators would not have to register with the government every time they made a work in order to be protected. This was a huge protective step for every day artists. A work is protected as soon as it is fixed in a tangible form whether it is registered or not. This is good for creators. What you are suggesting would strip away this right. That is bad for creators. In general, requiring governmental steps to get your work protected is bad. Many artists tend to distrust the government.
4. Just because a song has not been commercially exploited does not mean it has no value. Just because it has been created does not mean that “culture” should get to use it for free while the author of the work is still living and could turn his own ideas into something new with it. Creative people do not have to give away their rights simply because it is convenient for the masses. Yes collaboration and sharing adds to creativity and culture and these are great things. But that does not mean that those who choose not to participate should be forced to, as you are suggesting.
5. There is room in current copyright law to build upon the works of others. In the US, this happens when you register a new copyright with the copyright office. There is a big difference between allowing people to borrow from each others’ work in order to create new ones, and forcing people to register with the government (or governments?) in order to protect their work.
6. Writing, recording, and creating can be hard work that does not offer an immediate benefit to the creator. Copyright law protects the creators of this work and in spite of the changes going on in the internet, these rights still matter. If you want to give people more incentive to create, give them MORE means to make money, not less.
7. Artists usually don’t have a lot of money or property. Their creative works are often the only things they can count on. Asking artists to register their work with the government is not something I would ever count on. Sounds like a wide open door for further exploitation too…
A work that has never been released to the public is always under your total control. The registration process should only start after public release.
We DON’T NEED MORE MUSIC! We need BETTER FILTERS TO REMOVE THE CRAP AND GET THE BEST MUSIC TO RECEPTIVE EARS. And that means setting up incensitives for new business ventures, and for that we will certainly need BETTER COPYRIGHT LAWS, not removal of it!
Believe me, if you’re not getting to the music you want to hear it’s because the “series of tubes” is CLOGGED, not because copyright terms are too long or that the copyright owners a withholding the best from your ears.
A copyright, a piece of music, is like a child for a composer, and you might be simply a compulsive MP3 music collector…
I think that 5 years is a bit too short.
I’d be happy if we in the U.S. went back to the original Copyright Act of 1790, which was based on the U.S. Constitution Article 1, Section 8, Clause 8. The full text of clause 8 (all 27 words) is:
[The Congress shall have Power…]
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”
Note that it says “limited” times.
The copyright act granted copyright for 14 years, renewable once if the author is still alive. A total of 28 years.
If you can’t make your money off of a tune in 28 years and/or come up with another tune in that time I really have no sympathy for you. Perhaps you’re not the creative artiste you think you are, hm?
Alas, the SCOTUS (I’m looking at *you* Ginsberg) decided that the word “limited” could mean practically anything, probably up to and including “infinity minus one,” and we’re stuck with the huge back catalog you describe being sat on, mostly by untalented business hacks, who’re just lying in wait to spring on you should you dare to perform/record some forgotten gem written post-1923.
@Michael:
Culture does not equal government. Far from it. This is public as in public broadcasting, which is a space not beholden to commercial or governmental behest. This is that radical idea of ‘public good’ meaning ‘for the good of people’. Your analysis holds up only if it’s true that music is purely and simply property. Which it isn’t.
Not asking people to register with the government, any more than they have to deal with a government agency to administer rights under the current system. This is a far more efficient (and far less expensive) overhaul of the existing framework.
@imakemusicyoudont
I have to disagree here. The key to a better music industry environment is not to be found in restricting the amount of available music.
More music – like more literature, more painting, more dancing and more art and culture of all kinds – is desirable. Imposing commercial filtering systems as a cultural coping mechanism is totally misguided. It’s important to have your own personal filtering systems, of course – but blocking voices because they are less articulate is hardly the basis for free speech – another public good.
@Howlin’ Hobbit
I’d agree with 14 years as an arbitrary period under other circumstances, but copyright is SO broken at the moment, that anything longer than five runs the risk of locking people into a dysfunctional system way longer than is necessary.
Perhaps this is not the best audience to make this point to – but I stand by it: I will always prioritise the general cultural and social good over the wallets of musicians or anyone else, no matter how unfairly rewarded they have been in the past for their endeavours.
In all cases, as far as I’m concerned, culture trumps commerce. And enterprise based on a healthy public sphere trumps commercial lockdown.
However, what’s being overlooked here is the fact that the five year renewable copyright model works in favour of composers and creators in a commercial sense far more often than it might be inadvertently detrimental (if ever).
The current system prevents composers and copyright holders from making money – far more so than it enables.
Remember – the overwhelming majority of works currently under control of record labels is unavailable for purchase. This system incentivises the development of revenue streams that would bring that work back into the open, generate new income for the creators of that music – and substantially increase the size of the music economy by actually understanding and taking advantage of the Long Tail phenomenon.
Fear of ‘what might happen if I somehow don’t renew my copyrights’ is completely outweighed by the benefits of a system that mandates a positive commercial environment for all recorded music, and incentivises and enables the ongoing creation of new, monetisable works.
Still not seeing the downside here.
This is a great discussion you’re having!!
There’s one flaw in your argument — you are proposing that music copyrights should be 5 years. But, what about all the other arts that copyright covers (film, photo, literature, etc)? Are you suggesting that different types of art will have different terms. I think this is a nightmare of an idea because managing it would be very tough. And, it would be hard to convince publishers/owners of copyrights in other fields to do this.
But, I think you make some good points. The purpose of copyright is to promote creativity, and it seems that 98% of the works (is this in the US or the world?) aren’t being sold. So, the public is being denied enjoyment of them!
5 years seems a bit short, but if I had to vote yay or ney, I vote yes! Renewal could be easily accomplished online, as the copyright office has implemented online registration.
One thing that you overlook: you seem to associate the value of a copyright with the exclusive right to exploit the economic rights of the copyright. In the US, this is 100% true, as whoever owns the economic rights to the copyrights owns the copyright. So, if the copyright is not being commercially used after 5yrs, maybe it should automatically revert into the public domain. Or, maybe 10yrs is a more reasonable time period.
But, everywhere else in the world, there is a little something called Moral Rights. Essentially these are the “rights of the author” that ensure he’s attributed and the integrity of his work is maintained. In countries where they have, the economic rights of the copyright are separate from the moral rights. So, even if an author assigned the economic rights, he can always require attribution and that his work isn’t mutilated in a way that changes his vision. I think this is very important.
The US hasn’t adopted Moral Rights, except for visual arts (VARA). But if it did, the system you propose would work beautifully! If you’re economic rights ended because your work wasn’t commercially viable after 5 yrs, then other people could use it and give it exposure, subject to attribution to you! This attribution could help make money of your more current projects, which you’re likely focusing on. Even though the US is required to implement moral rights under the Berne Convention, they haven’t!
Peter Blue –What about the notion if after 5yrs your music becomes commercially viable, you are paid compulsory royalties for the use? Kinda like mechanicals…Or, what about a system of copyright restoration?
Michael Winger — ” Both the original creator and the one who alters the work to create a new one can still get paid from the new work.” I agreed! So, if after the copyright is in the PD somebody uses a hook from it to make a lot of money, the original author should get paid, regardless if its in the PD! If you’re involved in a song that makes money, you should profit from your art! But, your 3rd point isn’t completely accurate — while no registration is needed, the only copyright you get upon fixation is the common law one. If you actually want to sue somebody for copyright infringement (the whole point of having a copyright), then you need to have registered in order to easily prove your prima facie case for infringement.
Another thing to point out: did you know that the only countries that require copyright registration are the US and the Philippines? Thus, these are the only two countries where renewal would have to be filed. Generally, I feel that worldwide copyright law need to be harmonized, since through digitalization, its all one digi market now!
Hopefully we’ll see some much needed changes in US copyright law!
I knew it would make people angry if I post what I feel about that discussion. Some even stay anonymous in their comments.
The photographer has been paid. The cover art is mine. And the remark about the shopping cart is way below the level of discussion on this site.
I’m asking you, what makes you so angry about it? Is it the fact that we make a living as independent musicians, while the gurus are telling the starving artists to give away their work and sell t- shirts and baseball caps instead?
But I’m happy it stirs up some shit. Maybe we even get a little closer to truth.
I guess all artist that actually make money from their rights and can make a living from their work share my point of view.
I’m totally in favor of exchange and collaboration and the day my plumber will work for me without charging anything, just because he loves his work so much, will be the day I let go of my rights.
Cutting down rights will always be against the artist.
@Prepostra.
The photographer has been paid. The cover art is mine. And the remark about the shopping cart is way below the level of discussion on this site.
How on earth did you get ‘telling the starving artists to give away their work’ from what I’ve been saying here?! What blog are you reading?
The 5-year term encourages the commercial exploitation of works.
And, if you want to continue to make money out of the music (a happy result, if you ask me) you get to renew that term again and again. That’s really cool – and it also means that the works that are not currently being used to generate money, can be.
Most importantly, it means that if a composer intends to derive commercial value from a work, but a record label, who owns the recording, does not – then after the 5 years are up, the artist has the freedom to make use of their own work, rather than having it shelved and locked away by a corporation unwilling to invest in it.
This is, perhaps, the greatest benefit of the system. It puts the owners of recordings on notice that if they don’t make an effort to promote and sell an artist’s work, then someone else gets the chance.
Cutting down rights may arguably be against the artist – but cutting down the term of those rights and making them renewable (with caveats) is totally to the artist’s commercial benefit.
And – as I’ve been saying – it’s just better for a vibrant creative culture.
I’m not entirely sure why this is so difficult to understand.
gavroche writes: What about the notion if after 5yrs your music becomes commercially viable, you are paid compulsory royalties for the use? Kinda like mechanicals…
The fact that there’s no compulsory licensing for sampling in the US is a huge problem. I can easily and cost-effectively secure a license to record and release a cover of any artist’s song, but such a thing doesn’t exist for sampling.
If we had such an option, we wouldn’t have to worry about length of copyright. Anyone could just pay the minimum license fee at any time and obtain the right to use the samples. Artists would get paid, but they wouldn’t be able to hoard their published works away from the public out of greed.
And it would increase the chances of that “maybe someday” scenario happening, since the artist would be incentivized to allow more of his work to be sampled, rather than holding out for some big paycheck that otherwise might never come.
ScottAndrew — I definitely agree! Because to sample you need a license for the sound recording and the publishing, you can’t just rely on the current compulsory license (which covers just the publishing side). Hence, its easy to cover, but hard to sample (and have the resulting work be commercially viable! Some friends and I have started a company called MixMatchMusic (.com) which makes it easy to sample/collaborate worry free — all the sampling is logged in a transaction log, and everybody gets paid for their work!
“Only 2% ever been released up for sale yada yada” is an old fact. I remember hearing it at a seminar in Manchester 5 years ago, before the announcements from Apple about the quantity of tracks they have available. Think its important to keep the facts fresh really, 5 years from now people could be sprouting the same stats, pretty much invalidates the argument if they’re not careful. I would have expected a reference from you Andrew, being a senior lecturer and all, you wouldn’t let one of your students get away with that!
I think 5 years is well… insane. Perhaps it shouldn’t be 95 years as the industry is pushing towards either. I think what your saying here is if your not using it then give it back to the ‘culture’. I’m with you on one level, I download lots of live music and don’t feel bad about not paying for it, because I love live music and if it wasn’t commercially released, the label has nothing to stand on really. But a live recording is different to the copyright of the track and the composition. I think if people have made something and don’t want it to exploited it in any way, then it’s their choice, it’s up to them if they want to release it into the ‘culture’. Before anyone kicks off at this point, a label or publisher can’t decide this because of a clause written into contracts termed ‘restraint of trade’, this is up to the recording artist/composer to hold back a release.
I don’t think people really care about copyright term, people will just go out and make whatever they want, regardless of permission, it doesn’t stunt popularity either, take Dangermouse as an example with his grey album.
Artists, Songwriters, Labels & Publishers, have the right to have their works protected for a decent duration. It can take years before some tracks ‘take off’ and releasing them prior to this would be a disaster. Don’t even get me started on the chap who suggested the $1000 fee!
This may be an old fact – but I’m pretty sure it’s still a fact. And chances are it’ll still be a fact in five years time.
But you’re right: I don’t have a reference for this – though it seems a pretty well accepted statistic within the industry. Fortunately, this is a blog and not a piece of academic research, otherwise I would need to include citations. My job has no bearing on the mode of communication in use, surely?
But whether it’s true or false, supported fact or simply industry folk wisdom, I think we’re on pretty safe ground asserting that it’s in that order of magnitude – though again, I don’t have figures to support that particular hypothesis.
So – let’s call it an illustrative figure, shall we? Nobody’s ever actually counted the sum total of all music ever released by record labels and calculated the accuate proportion of that music which is currently active catalogue.
As you rightly say… “yada, yada.”
You say that five years is “insane”. You do realise that what I’m proposing could be a virtually indefinite term extension, on an individual case by case basis, don’t you? It’s only when the commercial possibilities have been exhausted that you let it lapse.
People seem to be missing that whole ‘you can get another five years just by pressing a button five years from now’. Not a big day at work.
Restraint of trade clauses are, of course, only relevant to acts who are actually trading. So for the vast majority of back catalogue material not being commercially exploited, but still hidden away from audiences, there is no legal case to be made to release it from the vaults.
Dangermouse is, as you know, an exception. And you’ll remember that EMI brought the full force of their legal team against that release – not something most producers would risk.
Of course, EMI would still get to play that game under this system. It’s probably fair to say that the Beatles albums will remain active catalogue for quite some time yet. But instead of spending millions lobbying for an extension of copyright that will affect everyone – regardless of whether they want it or not – someone at EMI would just have to press the ‘yes please’ button in 2013.
But you paint a very specific (and probably very rare) scenario: the artist who commercially releases an album, and then later decides that they don’t want people to hear or buy it. You claim that it’s that artist’s right to decide that. Here, we differ. I think they don’t have that right – and nor should they.
Once it’s released it is both property and culture, not just property. Before the music is sold commercially, the artist has the right not to release. But once released, the artist should (and does, currently) lose the right to withhold it.
And there’s a good reason for that: copyright is not FOR the artist. It’s to incentivise creativity for the good of society. It uses property rights and monetary reward as a means to achieve that end – but those means are not the end.
In other words, if you release a song, you should absolutely be able to make money from it (for pretty much as long as you like, if it were up to me). But once released, you should not withhold that song from the public – because while you own the rights, the song is no longer simply ‘yours’.
We talk as if copyright is some sort of natural law. It’s not. It’s a human construct, and we get to decide as a society how we want to foster and encourage the arts and sciences.
I’d prefer we chose a system that was fair to all parties, rather than absurdly unfair in favour of the corporate incumbents and hitmakers – and cripplingly tortuous to everyone else.
But most importantly – we have copyright so that people will make art. We don’t have copyright so that people who once made some art can live off its proceeds for the rest of their natural lives. It’s cool and everything when that can happen, but in the overwhelming majority of cases, that’s the opposite of what the present system offers.
I should like to ask one question of those who feel they would be hurt by this proposition.
What rights that you currently enjoy would you lose?
Thanks for the response Andrew.
Sorry to go into this, because it really is nothing, but I don’t think you can still call it a fact, even in 5 years time. A fact should be something that’s currently true. “Tony Blair is the current Prime Minister” isn’t a fact, it may have been true in the past, but cannot be called a fact at this moment in time. “In 2003, only 2% of all recorded music was available for sale” would be a fact. I’ll stop being pedantic now, promise.
With regards to referencing of course it has nothing to do with your job Andrew, I do however think ALL bloggers should reference material, I try to with all mine (although I managed to lose a lot of links in a moving process). It means people are able to look at the evidence/stats and judge for themselves in order for them to consider it (dare I say it) fact. I brought in an example of your occupation because I thought you would have been used to referencing and making sure all statements can be backed up. Obviously not a standard point of view in the blogging world, just my own (for now).
Rather than a process where the copyright expires, if people so choose to let the track go, they can do so with a creative commons license or something similar. I don’t feel such a big process is needed, neither do I think anyone should go out of their way to stop something they don’t want happening. You don’t get people going out of their way to the people selling the Big Issue to say “I’m okay thanks”.
With regard to your point on restraint of trade. I’m not sure I totally understand what you’re saying I’m afraid. If a label/publisher has these works ‘in the vault’ then it’s a prime example of restraint of trade, if it is in the property of the creator, then its obviously their choice and restraint of trade doesn’t exist. Please let me know if I’ve got the wrong end of the stick there with your argument mate.
I wouldn’t say Dangermouse is an exception, Hip Hop/Rap genres as we all know are heavily sample based, my music collection is full of samples not cleared however the artists such as the rappers Plan B and Example, have gone on to sell a decent amount of records.
What about a scenario where someone releases a track into the ‘culture’ but it appears on a pro Iraq war ad when the artist when the said artist is very music anti war, what happens then? People say copyright is all about control, it is, and it mostly controls the Intellectual Property for the benefit of the creators wishes.
The said small amount of actual repertoire available for purchase these days isn’t reflective of choice. Labels all around the world can’t afford to have products always on sale be it manufacturing costs, distribution costs, shipping etc. Obviously digital gets rid of these problems, but I know tons of labels digitizing back catalogues which is an expensive and time consuming process, especially vinyl/old masters (which is going to be a vast majority of the remainder sum), so the said figure will rise, I don’t know of any label who doesn’t want their music up for sale.
I think it’s going to be a hard job Andrew to find people to freely give up tracks under your system. Maybe creative commons already solve this for you, but I definatelly think it should be an ‘opt in’ rather than an ‘opt out’ process.
Sorry to be a big of a smart ass, but to point out why re-registering a copyright or lose control of it is bad for creators…
let’s just take a trip down memory lane to about a month or two ago…. what exactly happened to newmusicstrategies.com?
Regardless of government involvement or some private entity, I can only imagine what it would be like to re-register various pieces of catalog that are created at different times with different co-writers and publishing companies, PRO’s, etc involved…
I do agree that “for the good of people” and culture is also a good thing. The problem I have is that eventually, music makes money for people whether it’s in the public domain or not. Radio stations, television, film, advertisers, are all examples of enterprises that use music to make money and under current copyright law, are required to pay to use it.
Copyright law exists to make sure that some of the people that make the money from these uses are the creators of the works. This is not just the people that license the work from the creators (the labels).
If works go out into the public domain after 5 years, whether by accident (which is likely) or ineptitude on the part of management, the people that exploit the works will simply be able to use works for free and thus increase their profits at the expense of creators…
Therefore, somebody really could lose under this proposal.
However I would love it if some form of law could be used to convince labels to let go of some of the material sitting on their shelves…I have many friends whose albums are still languishing in obscurity because of label “strategies”.
It would also be nice if it were easier to procure sampling licenses for the creation of new works. But these sorts of uses can be incorporated into existing law, (a compulsory license is a great idea) or for those artists who wish to support this type of use we have Creative Commons licesnes.
Michael,
The phrase “throwing the baby out with the bathwater” comes to mind. Andrew will likely not forget to re-register his domain name again. That is the kind of error that people tend to let slip only once. And thanks to a grace period, his mistake was not final. Surely a grace period can be applied to this idea as well.
As for the rest of your comment, though it has been said already, nothing else changes. The law can stay the way it is today and, save for current time specifications, this proposal still works.
A few generalizations are very obvious from reading the heated discussion on this topic:
- Many people love to be right and are very attached to this
- People are unhealthily attached to things (tangible and intangible, music being one of them)
- People really hate change and are very attached to specific terminology and being politically correct
- People read New Music Strategies even though they don’t agree with Andrew’s fundamental ideas
- Of course no one is going to fund research that proves that less than 2% of all music that has ever been released in a commercial format is currently for sale, but any music lover knows it’s true without need for proof!
- Some things that Andrew suggests are hard to swallow for some coming from him because of the fact that he is not a music creator specifically
- I am a music creator, and spend hours and weeks laboring over my work, and artists spend significant amounts of money hiring me to work on it for them. But it’s very clear that with the way the world is changing, your still going to have to let your music be free if you want to be successful. There’s lots of examples of this being the case and working, so stop trying to debate it.
@Dubber
Andy,
the baseball cap and t – shirt thing didn’t mean you, but there are enough voices that say so in the whole indie music discussion.
“We don’t have copyright so that people who once made some art can live off its proceeds for the rest of their natural lives.”
Why not? If someone creates a song that gets so popular that millions of people love it over decades, he (or she) has made such a wonderful contibution to society and culture that a financial reward is just a fair exchange. It is all about exchange.
I don’t know how good you know me and Elizabeth, but when I wrote that we have composed and released 700+ tracks, that doesn’t mean we are corporate or sit on a pile of rights while retiring.
Creating music is our love, we constantly write and produce new material and we are grateful to be able make a living from our art.
@ Michael Winger:
Very happy to read your comments here. Absolutely true. Profits with music are made even when the creator is left out.
Time to leave the world of words and arguments – I go to my studio to create music.
Peter Blue, can you name a song that fits what you describe?
There’s a lot here to digest – and I’m really grateful to everyone putting so much effort into arguing their case. I haven’t yet found anything here to convince me that the status quo (long and ever-lengthening copyright terms) is preferable to something that prioritises public good over private gain – but that’s cool.
A couple of points for the record.
1) I am a rights holder, and have co-written songs on commercially released albums, run a record label, produced and performed (albeit somewhat ineptly) on records that have done well despite my involvement. This is not how I currently make a living, but it’s not an entirely foreign concept to me.
2) I don’t believe that I would need to have done any of those things in point 1 to understand the issues at stake here.
3) I’m delighted to be proved wrong and am more than willing to change my position on things. It hasn’t occurred in this case, but it happens far more often than you might think. It’s called learning, and I’m quite pleased when it does happen.
4) I agree with Anthony – a fact stops being a fact if it’s no longer true. We seem to disagree over the likelihood of that 2% statistic still being the case. In the body of my post, I said “it is estimated…” rather than “it is the case that…” – but either way, I reckon not much has changed over those 5 years in that regard – but it’s a hard one to argue, so let’s let it stand at ‘fewer than is desirable’.
5) What happened to New Music Strategies was that I deliberately shifted hosting companies to coincide with my contract with one those companies expiring. Bureaucracy, technical error, the sheer amount of time it takes to shift server and unhelpfulness on the part of my previous providers turned a planned outage to a frustratingly lengthy process. There was an estimation error there on my part, certainly, but it had nothing to do with forgetting to pay my bill…
But here’s a question:
Just hypothetically, if this 5 year renewable rights principle was applied exclusively to the rights that subsist in the recording – and not to the composer’s rights – would that change what you thought of the proposal?
More importantly, can you name a single song in which the original creator is soley responsible for putting that song in the ears of 1 million people. He wrote it, produced it, recorded it, mastered it, marketed it, distributed it, and at the end of the day 1 million people were enriched by his efforts.
Why does the creator deserve such special treatment? Where is the fair exchange? Without dozens or hundreds of people other people, from engineers to distributors, none of whom receive royalties, a work would not generate a million sales. Without limited copyright and fair use, what body of work would the artist learn from and draw upon?
Don’t get me wrong. I don’t undervalue the artist. I am an artist. I value myself very much. But I also know that I am not alone in the artistic community. And I know that even if tomorrow I were to become the next John Lennon, I could not claim that I alone enriched the world. My team, and not myself alone, enriches the world, and I play a crucial but not god-like role in that process. My teachers enriched me for years. My life inspired me. My peers helped me grow. To suggest that my personal contribution is so massive, so great, so completely dwarfing that I should be supported for the rest of my life by skimming money from the continued work of others would require an ego of such planet-like dimensions that I would need my own personal solar orbit.
Andrew, ‘fewer than is desirable’ – 100% agreed mate.
@Jerome who states you have to give your music away for free at some point in order to become successful. I think you should identify the difference from releasing music for free and the assignment of copyright into the public domain, they couldn’t be further from each other mate. The debate is actually about Andrew’s proposed new guidelines for copyright extension, not whether people should give away their music for free or not, I hope you see the difference.
@Michael Winger – just to correct you on one of your points.
**”Copyright law exists to make sure that some of the people that make the money from these uses are the creators of the works. This is not just the people that license the work from the creators (the labels).”**
– A vast majority of deals between artists and labels are actually recording contracts and not licenses, the difference being, with a recording contract (where the said label pays for the recording) the label owns the copyright for the period of copyright. A license is a contract with the act to exploit the copyright in certain territories and for a predisposed period of time . In the eyes of the law, the label, under a recording contract would be seen as the ‘creator’.
Andrew-
Yes, I think that limiting the life of sound recording copyrights is, in general is good idea. I’m not sure that 5 years is quite long enough to recoup, but I do think that some form of bundled copyright that allows the licensing of SR and Performance simultaneously is going to be essential in a future (or present) wherein most royalties for music are generated from licensing between creators and businesses.
And as far as your site hosting troubles, I was really just trying to make an illustrative point (in good humor, I hope) that the bureaucratic entanglements of registering ANYTHING online, while seemingly simple with technology, could still cause many enormous unintended headaches and loss of revenue for people who don’t remember to re-register their works or who might not do it correctly. I was just noticing an analogy with your situation, but writing late night after a long day of flying probably made me come across as a bit of a dolt.
I really do appreciate the debate though. I think that copyright law, like all law, needs to change and adapt to the conditions of the time. And we certainly have some serious changes going on.
I realize that the question of private good over public gain is the issue and ownership of copyright ownership is a very touchy one for artists and those who seek to protect them.
If the purpose of your proposed changes is to make sure that more music makes it out into the world for the purposes of sharing works, sampling and making more collage because people can hear more things, then that’s a good thing, although for the most part, it’s already happening. There is a lot of music out there, even if it’s only 2% of what’s made and sometimes the only way to discover it is incentivizing labels to promote that music…
On the other hand, making sure that people have incentive to invest in the creation and recording of new music seems more likely to persuade creators to spend money / time creating and releasing works
The amount of cash investment needed to recoup the expense of recording usually very large (particularly for any music that is not electronic in origin) even today. The decade old myth that “recording costs have dropped to practically zero” is simply untrue. Again, 5 years is barely enough time to get a release off the ground and make your money back. 10 years, maybe. 20 seems more likely. And just because an artist or label hasn’t been actively working a release, doesn’t mean they shouldn’t benefit from all the labor that went into it.
Having run a label myself and thinking about starting again, I’d be unlikely to spend much money making a record if I thought that I was only going to be able to benefit from that labor for 5 years. I’ve already got plenty of reasons to avoid taking that kind of risk.
Anthony- your point is well taken and thanks for the correction. I think that might be the real issue. If label deals could work as licensing agreements instead of outright ownership of copyright, and as such would have to bring value to the compositions or else they lose their rights, is a great idea.
Copyright law seems a lot like traffic signals and stop signs. It may seem like a huge inconvenience when you’re on a mad dash to get somewhere seemingly important, but they actually protect a lot of people whom you can’t see. And sometimes we need to adjust the timing of the lights, but that doesn’t mean we should get rid of them just because we’re in a hurry to shorten our commute to the new housing developments growing on the outskirts of town.
@Michael – yes, except that five years is not a limit or a deadline for anything. If you need 10, 20 or 30 years to recoup your investment, this allows for that to happen.
You’re not on a ticking clock here. Nobody’s going to stop you from earning money after five years is up. This seems to be the bit that nobody has quite grasped.
However, I would suggest that the vast majority of released music (particularly in the fields of rock, pop and ‘urban’) is expected to be at its most commercially active in the first two years of its release, though there are many exceptions to this, of course.
But the comparatively short renewal time is simply so that works that are NOT considered active catalogue can re-enter the public domain rather than being tied up in a limbo state for decades at a time.
And that’s good for the artists and for the public.
Lil’ too much heat in this kitchen for me-I’m busy working on my project-just in the middle of a render…
The real issue here is the same one it always is-’where is the money coming from…?’
Does anyone have any good ideas about what would be the IDEAL rights for copying (I said it that way on purpose) someone’s art in the digital realm? That’s what I’m interested in at this point.
I find when ever I have this conversation, I go out of my way to make it personally apply to the person I’m talking to and I find I almost always get the same response-most people are for free at/product as long as it doesn’t come out of their pocket. The concept of a copyright is based on control (initially of Player Piano Reels as I understand) of a material item. We all know that digital doesn’t work that way, so what *should* be the approach?
At the risk of offending some, the leaders in online tech is really the Adult Film Industry. They are having the same problem we are in terms of what happens to content. They seem to have gone we a very different approach which I find interesting-though I do know that some are taking the old method. One particular site actually has all it’s content up and takes a point based ‘on demand’ approach. If you buy at a flat rate, you get a certain number of points and you can use that to purchase content. The more popular content, the more it cost in points. It seems to be an interesting and potentially viable way to sell product…
Sorry for the tangent-I just don’t see the old methods as really applying anymore. Where the do, I think an artist is smart to follow them, if not-try something new…
J
I’m too late to catch up on all the comments and rushing to catch a plane in a few hours… but three thumbs up!
Yes Andrew, I’d prefer your new copyright term to refer to the recording not to the actual composition. (and I’d prefer a longer period for the recording too)
Is there a way of working in some protections for ethno-music/artists
against having ‘sacred’ music being exploited out of context?
@ J – You’ve reminded me of something I meant to say but didn’t. Copyright is NOT the right to copy. That’s not what it means. Thanks for the prompt.
@ Blaise – much appreciated. Hope you get a chance to read the comments – there are some smart people in here.
@Karen I think what you’re talking about here is the concept of ‘moral rights’ which would apply to things like political beliefs too. To be honest, that’s an aspect I haven’t given too much thought to, but I think there’d be a case to prevent music from being used in ways that were in conflict with the author’s world view – but even in such cases, I’d be prone to come down on the side of free expression – and would argue in favour of a strong ‘fair use’ policy in such cases (parody being a perfect case in point).
I’d like to allow the copyright owner to keep the copyright as long as the work is economically viable. But only the copyright owner knows when the end of economic viability has been reached. The best way I see to do this is to require a moderate annual (paid in whatever form is convenient) fee of around $100. This fee would start when the work is first published. When you stop paying the fee the work goes into the public domain.
This fee solves many problems. You always know who the copyright owner is, it’s the person paying the fee. It solves the problem of music from the 1920-40′s where no one knows who really owns it. No one would pay the fee and it would go to the public domain. It also solves the problem of recording labels sitting on 2M tracks and keeping them off the market. They’d have to pay $200M. That will quickly force them to sort out the profitable tracks and to release the rest to the public domain. I’m sure the fee would be paid on the Beatles for the next 1000 years.
Jon Smirl said
“This fee solves many problems. You always know who the copyright owner is, it’s the person paying the fee. It solves the problem of music from the 1920-40’s where no one knows who really owns it”
There’s a bunch of cool tunes from that era that I’d be glad to pay the fee on actually – and a bunch of Maori tunes that are really old but would sound great with a grindcore bed underneath them (especially the prayers) and there’s all these Hindi chants and African tunes that could be up for grabs too – cool!.
( I have my tongue in my cheek obviously but is this the kind of free expression that you mean? What about cultures that don’t have the same kinds of morals than we do? e.g melodic Muslim prayers anyone?)
Sorry, Karen – but you say this as if Muslim prayers are currently under some sort of protected status thanks to existing copyright laws, and that this would be somehow threatened by a change of term – which is not only wrong, but it confuses this issue beyond recognition.
I think your point about there being some pieces of audio that would offend certain people’s sensibilities if they were repurposed is a fair one, but I don’t see what it has to do with this discussion.
For the record, though, I would note the following:
1) I would personally be inclined to respect any traditional musics held to be sacred;
2) While there are musics that are held to be sacred, that doesn’t necessarily mean that they are sacred;
3) Offending traditional sensibilities gave us jazz, funk, rock&roll and punk. And the civil rights movement. And universal suffrage.
Rather than get into a debate about ethics and respect, though, shall we return to our discussion of copyright?
A last thought: I was mentioning fair exchange and compensation before. The idea behind it is that the creator is rewarded whenever profit is generated. In an ideal world, everybody would be allowed to copy and use whatever he wants. If profit is generated, the original creator would get a share, depending on how much of his work is part of the new work – if it is only a small detail or the main musical theme.
As the world is not an ideal one, we need working rules. It works with the publishing rights already: I can use any composition, or part of it in my work. All I have to do ist to register my new composition and stating what parts of other works I have used. The publishing rights organisation (GEMA in my case) splits all revenues among the authors.
That could work for performing rights as well. Then we do not have to limit copyrights and still have the desired flow.
Hi Andrew, thanks for your response – I realise that my comment could be read as if I was suggesting that sacred/traditional musics
“are currently under some sort of protected status thanks to existing copyright laws, and that this would be somehow threatened by a change of term”
but I am not saying that at all.
I agree that copyright is broken. My comment is a (OK – clumsy) attempt to dialogue about what ‘music’ is/isn’t subject to any kind of copyright. And about ownership of ideas and yes … traditional culture (and all the creative ideas therein).
I’m not sure however that separating ‘ethics and respect’ ( good choice of words, thanks) from the copyright debate will fix it. I suspect the opposite is true as uncomfortable as it may sound. 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’.
Anyway I just ducked out to a film about Albert Ayler, now there’s your case in point about stepping on musical traditions.
So ………….. How can we have one law for “pop” music/culture and another for “traditional/sacred” music/culture? We probably can’t. Do you think your idea (or anyone else’s for that matter) will offer enough protection for traditional/sacred music and texts, from users who don’t share your high personal ethics?
k
@Karen We seem to agree on everything except the idea that protection of “traditional/sacred musics and texts” against unwelcome speech needs to be written into copyright law.
It’s a bit like wanting ‘driving while naked’ and ‘offensive bumper sticker’ rules to be written into the road code. Related, perhaps – but conceptually a different territory of law.
Again, my personal ethics would have me not own an offensive bumper sticker, and nor do I think it’s appropriate to display an offensive bumper sticker in public. But I’d fight pretty hard against a law that made it illegal to make or own an offensive bumper sticker.
Now – back to copyright.
I think you’ve made a very silly proposal.
For starters, this would be ridiculously difficult to maintain. Just consider the sheer size of such an effort– communicating with the government every time you released a song? What if your song was leaked before the release date? Think of how many individual works would have to be tracked! This would be monstrously large, and could only conceivably function if there was an absolute minimum of paperwork involved… and if this was the case, it would probably be rather useless.
I can envision the bigger companies bulk-mailing their copyright renewals, tens of thousands of forms at a time– who’s going to check if they’re lying about some obscure artist’s track? What’s the penalty if they do, and how would anybody know?
In order to implement your plan, you’d have to assume some sort of regulatory process or staff existed for catching/verifying the actual use of the tracks in question, which just puts the government further in the position of being up the ass of artists.
Then you’ve gone further, and suggested artists (or presumably, their labels) pay to renew the copyright. On one hand, you’re using this argument that we have some sort of inalienable right to have our work protected, but then you’re qualifying that with “well, if you’ve got $100″…. sounds to me like a stupid economic barrier that will only benefit those already doing well.
This is a muddled idea all around, and you’d do best to dump it.
I appreciate your point, DaveX, but would offer 3 observations:
1) I specifically said ‘not the government’
2) There’s already this thing called ‘collection societies’ or ‘rights agency’ – centralised bodies with staff and computerised systems for tracking complex royalty reporting.
3) I didn’t say anything about a payment scheme, and I’m not entirely sure I agree with implementing one (though it does currently cost money to belong to a collection society).
Fair enough, you didn’t say “government”… but at this point in time, how many ordinary folks would be aware that the RIAA, etc ISN’T a government agency?
Also, you can’t exactly argue that they’re doing a bang-up job now, and you’d have to admit that this would be a LOT more work for them (or any similar agency).
Implementing your idea is on a similar order of magnitude to doing away with mailmen, and just having big pipes that shoot packages directly to everyone’s door– it sounds nice, and theoretically might work, but the actual practice would be absurdly overwrought and unwieldy– most likely to the detriment of artists.
I have to commend you Andrew on being able to stir up such emotion from people to attain 50 or so comments, some actually worth taking in, others not so much.
But I would ask you to justify why this should be an ‘opt out’ system rather than an ‘opt in’? Perhaps I might see you at the next brum bloggers meet and I might bring it up with you.
Well done to others who have contributed to the comments, always interesting to hear peoples perceptions and theories about copyright.
Re: opt-out rather than opt-in.
Simple: because record labels won’t opt in.
And they’re the ones with all the catalogue that isn’t being used (98% or something, remember?).
The whole point of this is to return orphan works to the public domain, while still giving the opportunity for people who are actually using rights (rather than simply hoarding them) to earn money from their work/investment.
This is not about providing an optional alternative system that people can choose if they’re bored with their old songs. This is about mandating that culture is not locked away by people or organisations on the off-chance that they might think of a way to spin a buck out of it someday.
Why should most music be inaccessible to most people just so that some music can earn money for a longer period?
My proposal offers a way for that small amount of music to continue to earn indefinitely if there’s money to be made – but without tying up the vast majority of creative works in the process, as is currently the case.
So – this is not about shorter copyright terms. This is about undoing the madness of universally long terms.
All right, I’ll go at this from another angle. How could the system be gamed? From what you describe, all a company has to do to keep something viable for copyright renewal is to simply click some button– ostensibly on their honor, that the track in question is still “in use” in some way.
So all Big Label X has to do is offer every one of it’s millions of tracks as an mp3 somewhere– forever– and hire some kids in a cube farm to punch the renewal button.
Dave – that’s not gaming the system – that’s making the works available. If they did that, I’d be f**king delighted.
That’s too business-centric for my tastes. I don’t see how it benefits anyone involved with creation/art to have some company selling a dead guy’s stuff for the next 200 years. If something isn’t worthwhile, how do you think commerce could keep it alive? If that was true, you’d be able to go buy fannypacks and pet rocks at every store. Under your system, labels would NEVER choose to let anything go, as there’s simply zero economic motivation to do so. It would be a choice between
1) make no more money on this
OR
2) probably make no more money on this
Dave – the $100 fee stops the gaming and hording. If the label pushes the button for 2M tracks they owe $200M.
There needs to be some kind of test where the artist is forced to decide if the track is still economically viable. Paying $100/year is the test. You decide each time you make a payment whether the track is likely to earn enough during the renewal period to cover the fee.
The fee can’t be zero or very small. If it is everyone (the labels) will renew everything forever on the off chance that their track might get sampled in some megahit is 2087. The side effect of that is that millions of works are kept out of the public domain.
I believe the economic term for this is negative externalities. The current copyright law has a negative externality in that it destroys orphan works. The fee corrects the negative externality. But I’m not an economist.
You say Label’s won’t opt in Andrew, but say for example the scheme was compulsory, what makes you think a label would ever not click and extend the individual copyright term?
I personally don’t know much about orphaned works. If you came across a label who was still active and had no intention of releasing back catalogue, it would surprise me and there could be a case brought against the label for restraint of trade on those grounds.
Your statement of…
Why should most music be inaccessible to most people just so that some music can earn money for a longer period?
refers that a said company are making money from the repertoire suggesting it is on sale and under your scheme, with the said company still making money from the repertoire, what makes you think this company would release the tracks therefore making the music accessible? Not trying to wind you up here Andrew I hope you understand, just debating some points with you. Your proposal may only work with a cap on how many years a copyright is allowed to be kept, which basically brings us back to ‘decreasing copyright term’.
Jon– That’s fine for folks who have $100 to throw around, but what about the struggling artist who’s releasing on CDR, and finds his stuff ripped off by some company because he didn’t have $100 to throw at every tune? To make this plan work, it has to get more and more complex– next thing, the fee will be on a slide scale, based on your last year’s income!
@Jon Smirl
Jon, the last thing we need now is another dam society.
Where is the $100 going to go other than black box funding and paying handsome salaries to people who don’t deserve it.
I see how it is– if you’re poor, you can live in the public domain ghetto, on the hopes that patronage will be your way out.
And Jon, is that how you’d really feel about getting ripped off– “hey, I’ve got a customer!” I’m calling bulls**t.
Antony, the fee would have to go to the government since it is a copyright renewal fee. Hopefully there would an international mechanism so that a single fee would cover the world. As for where the proceeds from fee go, that will be up to the legislature.
One would hope that it gets used for preservation of works and possibly enhanced copyright enforcement for works paying the fee.
Davex – Google my name. You’ll see that I work on Linux. I get ripped off all of the time and I’m happy that it happens.
The world is built by standing on the shoulders of people that did work before you. The process only works when everyone is contributing.
Even though all of my work goes straight into the public domain there are many ways to profit from it.
@Jon Smirl – more money to the government?
You might be right there, I hear they’re looking for money to invade Iraq, perhaps we should throw more money their way? I think not.
Jon–
Okay, I’ll bite. Why have copyright at all?
This is by far the most comments I have seen posted here…I believe this has touched many a nerve.
Davex – You have to realistically look at the effects of the Internet and digital technologies. Once a work escapes onto the Internet there’s no getting it back. So while we may want copyrights on digital works the only way they are going to get enforced is to have a police officer in every teenager’s bedroom watching their every move. So I’m simply being a realist, it’s impossible to enforce copyright on digital works where the cost of copying is zero.
Accept this and figure out a new business model. The sooner you do the better off you will be. Music has an obvious one, consider recorded music advertising and focus on live performance or the licensing of works for commercial use (such as in advertising).
Software is simply ten years in front of where the music industry is in accepting the effects of zero cost digital copying. That’s why today’s winners are Google, Facebook and Yahoo while Microsoft is losing. Google and Facebook don’t depend on copyright of digital media.
@Dubber
Andrew, I see your point now re restraint of trade. But a label without doubt under the court of law would lose a case if they didn’t have repertoire made available for sale in this digital age. It may have a meaning of ‘not allowed to work’ but not being able to make money from repertoire because there are no points of sale is also a restraint of trade because they aren’t allowed to monetise to something they have spent time creating. Would love to see a test case of this and would of course, be on the side of the artist.
Major record label contracts (Having seen some Warner brothers recording contracts) are actually very savvy to restraint of trade. If a major has a recording contract with an artist (reminder to people reading this, with a recording contract, the major would own the recording for the duration of copyright term) If they haven’t successfully released thorough sister companies or licensed to 3rd party companies in other territories within 3 years, they are released from contract in that specific territory ALONG with the recording to sell on as they so wish. Something that really took me back when I came across this, and fair play to the majors I say.
**”But the thing that would stop labels from doing that is the cumulative cost of digitising the works, scanning the cover art, entering the metadata and registering each work for the first time. A small effort per recording, but a massive and fairly costly campaign for millions of tracks that are not currently in circulation.”** A point I made in a previous comment above and totally agree.
REALLY IMPORTANT POINT BELOW HERE PEOPLE!
I don’t think companies are out there NOT trying to get works digitized, we know of labels and artist who don’t want their works digitized and only released on vinyl (vinyl fanatics). But companies who aren’t getting the catalogue digitized and sitting on recordings represent a small percentage of companies. It isn’t fair to introduce this new copyright scheme because a small amount of companies aren’t playing ball.
Let’s take that 98% figure, even though we may disagree on the actual figure, thats not important. Let’s take that 100% and split it up to what actually matters here:
1).Companies who own copyright and want the tracks available for sale
2) Companies who own copyright and DON’T want the tracks available for sale
It should be for the 2nd class of company who you are after. I guarantee, split 1 isn’t 2% and split 2 isn’t 98%.
That’s not necessarily so, Jon– they really DO depend on copyright, or at least infringing on it. Think about YouTube… if it wasn’t for copyrighted content being available on it, you’d have a significant loss of users. Things like Facebook, MySpace, Google Video, etc all depend on this to a point.
Now don’t get me wrong, I understand your point. However, the bottom is going to fall out for performing musicians if you think that concerts are going to be enough to pay their bills. Bands like Radiohead have profited off the traditional music industry long enough that they can pack a concert hall no sweat, and they got there (in part) by having excellent distribution of a LOT of their albums. But how realistic is it to think that some new musician could invest enough money to create/record/manufacture enough albums (and furthermore, give them away as advertising!) to interest enough people to support them at concerts?
This is like turning musicians into cold-call salesmen! And what does your analogy say for software makers? Can they give away their product (you call it advertising) and live off their PERFORMANCES? Last I knew, programmers didn’t go on tour.
Dave, the point is that the Google, etc business model is not dependent on copyright laws to protect them. Microsoft is. Microsoft survives because copying is not an issue when you are pre-installed on 100% of PCs.
Software uses different models to make money. Google/Yahoo/Facebook’s core assets are contained on their servers and are never made public. Since no one can get at them they can’t be copied. I use a different mechanism, my code gets embedded into hardware devices. Hardware devices can’t be copied at zero cost.
Give it up and accept that digital copying can’t be stopped. Live it with and figure out another scheme for making money. The disruptive force of digital technology is as powerful as the invention of fire. Digital technology will destroy the newspaper, music, movie and television industries as we currently know them. It is inevitable and it can’t be stopped, it’s called progress,
@ Anthony
You’re forgetting: I want for a whole lot of that back catalogue to enter the public domain. Of course record companies that want to digitise and sell their forgotten assets – but there’s currently no incentive for them to do so with any haste, because they won’t lose anything if they don’t.
Let me explain it this way: I listen to a hell of a lot of music that is not commercially available. 70s soul jazz, mostly. Never released on CD, let alone not available for sale digitally. Deleted albums. Masterpieces, many of them.
We’re not talking about not releasing within 3 years of signing the deal, we’re talking about music that was, at some point in its history, deemed ‘no longer economic to sell’.
But because of the internet, economics has changed. This is the message of The Long Tail. You no longer need to press 1000 copies – or a million copies. It just needs to be digitised and available. The time has come to make a decision about all that stuff that wasn’t able to pass the old test of viability, and give it a new, much more achievable test.
Let people like me buy that stuff.
5 years says: Make a decision: do something with it, or don’t. If it’s worth selling – then invest in the process and sell it. If it’s not, then release it into the wild where people can get the benefit of it. Under those conditions, labels will figure a budget they can spend on digital reissues, draw a line under what they can reasonably invest in – and then empty the rest out into the public domain.
It’s not a loss, because they weren’t making money from those songs. But now they’re not locking them away from the public sphere, where they belong.
But if it will sell more than even one copy – it’s probably worth doing – because cumulatively, that’s a fortune. Ten years ago, it probably wasn’t worth a major’s time and energy unless it would sell 100,000 or more. But that incentive to invest – the deadline – needs to be there, otherwise nothing would happen.
Has everybody missed the fact that part of what I’m trying to do here is drag the major labels kicking and screaming into profitability?
You’re still not telling me how you expect creators to get the capital to make things in the first place, Jon. And as for Dubber’s back catalog, how are you going to get it once it goes public domain? Think about it– if you dig… let’s just say the Chi-Lites, and you can no longer purchase their album through their label because it’s out of print, how is this situation going to be any better once the Chi-Lites albums are in the public domain? It’s still going to require you to find the material! Chances are, you already have it, having been made aware of it through A PREVIOUSLY-RELEASED ALBUM.
If you want a new copy, who’s going to supply it? If there’s a market, don’t you think the copyright would just be transferred from a major label to some smaller label, and endlessly renewed there? There’s no reason why ANYTHING would ever make it to the PD under this setup.
Davex – if it’s in the public domain, smaller labels will be able to pick it up and reissue it. Or make compilations. Or whatever. Happens a lot in jazz from the 20s and 30s. Whole series of albums bringing an amazing body of work into record shops at bargain prices – because securing rights to the recordings was no longer a hurdle.
Ever seen a Fats Waller CD or a Duke Ellington compilation? Wondered how Tinpotlittlelabel Records gets to release something like that? Because, as Jon Smirl rightly points out, it’s possible to make money from things that are in the public domain.
Independents who can curate a decent compilation get rewarded for their efforts, and they don’t have to bash their heads against a regime that locks that music away from fans.
Hell, if it’s in the public domain and nobody remasters and reissues the Chi-Lites music, I’ll track it down and do it myself.
When does any of this benefit artists?
@Dubber I’m not sure our debating back and forth is actually working via comments and will have to draw the line here because I could have come back with a few more paragraphs, but we could do this for weeks and I can’t really justify spending this much time on comments for one argument. Thanks for the replies and hope I’ve made a valid contribution. Anthony
If the labels were smarter they’d copy what IBM does. Each year IBM makes a big deal of donating a bunch of code to the public domain. This makes for great press.
IBM writes the value of these donations off against income as a charitable donation. The IRS allows this since it truly is a donation to the public domain. The valuation of the deduction is also easy since the software has been recently written and IBM has good records showing what was spent.
By slowly donating their uneconomic catalog to preservationist charities the labels could probably eliminate their tax bills. They’d just need to be careful and use a realistic valuation for the write-offs.
Of course this still doesn’t fix the orphan work problem where ownership is not known.
DaveX,
How does any of this hurt artists?
And since when do fledgling artists have any real capital when they start? Garage Band isn’t just the name of Apple’s software.
OK, that took quite a while to digest. Now let me see if I understand the debate;
- 5 year copyright renewal proposition has been proposed (and I agree that it is hardly a hard days work to maintain)
- Many artists feel that they should be able to have an unlimited lifespan for their copyrights
- Setting the music free after it has failed to find any ears to pay for it is good for cultural contribution and growth
OK, so if I have managed to understand the ideas expressed here then what exactly is the problem?
First I would suggest that artists in todays music environment establish their own publishing companies and in doing so maintain the rights to their “art” by clicking that mouse button every five years.
Second I would suggest that the effort being put into arguing this point (fellow artists I am speaking to you) be invested in continuing to create great music and (again) clicking that mouse button every five years.
Third I would like to ask Mick Jagger or Paul McCartney exactly how threatened they feel by the multitude of anonymous artists that appear to think they are in the same league as the Rolling Stones or The Beatles? I certainly am not and I certainly have the time to click that mouse button every five years.
If I was in the same league as such prestigious / successful artists as the two mentioned above I am sure I would have hired someone to maintain my copyrights for me.
T-shirts and baseball caps, concert tickets and the like seem like they would only be bought if your music was being circulated in which case I would assume we would have all taken the time to click that mouse button every five years.
Orphan work where ownership is not known? That seems to me the artist is dead or lazy…and either way; thanks for the sample!
I don’t know? Maybe I just don’t get it?
I come back to the idea of clicking that mouse button every five years…what’s so hard about that? I mean it seems evident that recorded music is not the “product” it used to be and the sheer saturation in the music environment and the obscurity issue are really a much more worthy opponent than that little mouse click every five years.
Copyright Schmopyright, wtf? Make great music, be smart enough to maintain your rights, play shows, sell shirts and caps and get on with it!
They only people who really bank off endless copyrights are the monster companies that would bother to snatch them all up and renew them accordingly. So don’t let them! Be your own owner and manage your property.
When Mick or Paul post a comment here complaining that they haven’t been properly compensated because they did not manage their property then I think we have a real problem to discuss regarding the 5 year plan.
I don’t think unlimited copyright should be the basis for “making money while you sleep”, in fact that just seems a bit lazy from my perspective.
I think it is the artists default stance to feel wronged at the thought of loosing their copyright…so, DON’T LET IT HAPPEN! Click that frackin’ mouse button every five years and get on with it! (while the culture grows and thrives.)
This idea of the rights running out only applies to the folks who don’t feel they have the time to manage their “property”. There is a lot of great music out there that we may never hear because it is locked up in a vault under outlived copyright laws…when it could find it’s way into the publics ears in one form or another causing a possible windfall of attention given to the original artist, who could then in turn put out new works riding on the coat tails of a long lost track that was not properly maintained in the first place. And just maybe the artists that used the hook would be kind enough to promote the original artists continued and maintained work? (Wishful thinking maybe?)
In conclusion, let us all hope that our talent is such that the one hook we wrote that slipped out from under us is not the first and last great piece of music we will create. And if one great hook is all you got…then click that frackin’ mouse button every five years!
I am sure I just don’t “get it” as I am sure many will begin to inform me of soon…and I am prone to random tangents.
Things are different now. Commitment, acceptance and forgiveness go a long way in all life’s endeavors (including making and selling music).
until the artist dies; then it becomes open source.
just found this blog via a certain forum.
just wanted to drop by and say that i support your proposal 100%.
also, speaking of copyright, how about that andy warhol eh?
he kinda used other peoples work in his work, think he cleared it with them first?
hardly.
the grey album, as mentioned.
hell, the whole underground electronica scene is more or less based on copyright infringements, the popart scene aswell, imagine the collective creativity this proposal would encourage. for you people claiming to be artists and not supporting this: you truly do not have love for art. shame on you.
I wouldn’t support it solely due to the fact that it would enable the creation of yet another enormous gov/nongovt agency supposedly devoted to “protecting” or “monitoring” our rights. Can you fathom how gigantic such an undertaking would be?
@DPHOUSE84
Really? And you are a DJ? (A deep house one from what I can tell)
And you really think copyright should be until death? Would you still say that if every artist who ever took a spin on your decks started asking you for royalty payments?
Or how about if those artists started getting sued by the rights holders of the samples many have surely used?
Just asking.
Look at this in perspective of other industries. If copyright were applied to science, nuclear energy would be the sole property of Einstein’s heirs until 2025. The automobile would be the property of the Ford heirs until 2017. The airplane would belong to the Wrights until 2028. Civilization would not exist as we know it.
Why is music special?
@Jon — What you’re talking about is intellectual property protections for science, which is done through Patents. A patent lasts for 20yrs and gives the inventor a monopoly over that invention. But, with patents, compulsory licenses are often required if the invention is important for a public/health purpose and there’s no way around using the invention.
Music is different because it’s an art. Under the eyes of the law, inventions are not considered the same type of art. There seems to be more intrinsic value to the invention, which is why the govt deems that an inventor can make his money in 20yrs. For copyrights, the govt gives artists much (much longer).
After being away from my computer for a few days, I am pleased to see this debate still rolling on. Actually, this debate and Dubber’s position has been traveling through the blogosphere.
I think we’re all in agreement that musicians should profit from their works. The questions is how long should these musicians be given “exclusive rights” to their works?
I think what Dubber is saying is fair — 5 year copyright terms that can be renewed, via the click of a mouse. Dubber, are you proposing some sort of limitation on how many times an artist can renew? If not, this idea is AWESOME, as it would allow those artists who actually cared enough to click the mouse to have their copyrights renew (and renew) which means they could eventually have the same duration that we have today. But, for those artists that discover their music isn’t commercially viable after 5yrs, they don’t have to renew and they don’t have to pay more fees. Also, there has been chatter about what the right fee for registration should be, and i think the amounts proposed are way to high. $50 sounds good to me, which is actually more than the Copyright office currently charges. So what’s the problem here?
I thing I would love to add is that it would great if after the artist decided not to renew the copyright and his work entered the public domain, the artist should continue to be attributed for his work. This one of the moral rights in countries outside the US, and if we had it in the US, a lot of people would be more comfortable with putting that work in the PD if they knew they would get attributed. If this happens, why not put it in the PD if you aren’t going to be making any money from it,
And if you think your work might be viable in the future, then just renew the copyright every 5 yrs. Pretty easy, no?
I like most of what you say, but I have to disagree with this.
I think that as long as an artist is alive he should be able to have complete control of how his or her creativity is used. If they choose to not let someone use their work, that is their choice. As long as you wrote is I think it should be yours, and you should not have to go through the hassle of re registering every 5 years!
I agree with what Michael Winger says
@Laura
Seeing how copyright registration can now be done online, I don’t see how clicking a renew button every 5yrs is a hassle. If you don’t care enough to spend the 5 mins to do this, it doesn’t seem like you really care about the exclusive rights being granted to you.
@Gavroche – think about how absurd it would be if we applied the copyright rules for music to science. The people creating science have to eat and pay mortgages too, why shouldn’t they get the same protection as musicians?
If we reversed the terms between patents and copyright tomorrow, we’d all get a very quick lesson in how obviously wrong the current copyright terms are.
Why is music more special than science? I don’t think that it is.That’s an argument for equal terms. 20 years with no renewals.
Patents -vs- copyright is almost (I said almost) a battle over semantics.
Science and discovery should not be limited to the sole entity that discovers or innovates…however products deriving from said discovery or innovation are another subject altogether.
…as the debate gets even thicker…
It would be impossible to set back existing laws throughout the world to implement your plan given the importance of intellectual property rights to national economies – meaning that what you are suggesting will NEVER come to pass … and that every argument that supports your suggestion is moot…
But, let’s set that not so trivial concept aside …
The reality is that everything piece of music anyone would ever want to re-purpose is slowly but surely becoming commercially available – legally – in one digital format or another – from downloads to streaming.
I’m a music publisher, and, I’m sitting here preparing royalties for distribution on August 15th. As rates for digital uses have been established – either via negotiation, rate court proceedings or legal actions – I’ve watched the number of songs reported to me skyrocket.
Tracks that haven’t been available in tangible formats for years are showing up. Obscure songs, known songs, forgotten songs… are all becoming available digitally for human consumption… and artists and songwriters are starting to get paid for those uses.
And, as technologies for tracking and paying for uses gets more and more sophisticated, the number of long tail songs that will reveal themselves as having been used will continue to explode.
It won’t be long before the only materials that won’t be available will be those that were never released … and, what the remix community has no way of knowing about … they won’t care about.
In other words, there will be no meaningful recording that one might consider an orphan.
But, just for argument’s sake, let’s say there were a few recordings that would be available for mutilation, what you have to remember is that they would only be available if the underlying songs were licensed.
If a recording fails into the public domain … that doesn’t necessarily mean that the song is in the public domain. For example, if the Elvis recordings fall into the public domain in the UK at the end of 50 years, the songs will still be in copyright … Sampling ‘Heartbreak Hotel’ without a license from the music publisher could get the sampler in a whole lot of trouble.
Digital uses are breathing life into tracks that have remained dormant for years … You might have had an argument regarding those tracks prior to the digital revolution … but, with the invention of the mp3, that horse left the barn …
Now that the original feature artists, background singers, musicians and songwriters are finally getting paid for those formerly forgotten works (90% of whom haven’t made a living from their art for years) why would you suggest a plan that would take this new world opportunity away from them?
Tonso
One quick final point … A song is not tied to any particular recording of that song … Songs can be recorded by any number of artists (known as ‘cover records’) throughout the lives of their copyrights … For instance, I represent songs written over the last fifty years that get re-recorded as each new generation of artists comes along. Songs and recordings are – and must be thought of as – separate entities … and should never be lumped together when considering how to deal with creator’s rights.
Ever since the DMCA here in the States, the concept of when a song enters the public domain has become very ambiguous.
My band recently recorded “Oh Danny Boy.” I was shocked to see that Harry Fox still listed it as owned by Universal Music. Out of fear, I paid the licensing fee (Universal has a whole legal department. Me? I’d have to pay for a lawyer out of pocket).
But it made me wonder. I’m in a band that plays a lot of “traditional” songs. There’s a wonderful subculture of musicians performing traditional music. Take a song like “Rocky Road to Dublin.” There are dozens of great recordings of this song. Every band that records it does it slightly differently — has a different take on the song.
What happens post-DMCA? Does traditional music end with the 19th Century? One hundred years from now, what will become of the traditional music scene? It will turn stagnant.
Humanity has had a long rich history of music. Does this end because of a poorly written piece of legislation passed to protect record label profits?
I hope not.
@Tonso
So let me see if I have this right. You’re saying:
1) The importance of copyright to national economies means that copyright terms can only ever go up, and not down – despite the importance of a healthy and vibrant public domain to a national economy, and the fact that renewable copyright periods enhance, rather than threaten, economic growth in the creative sector;
2) Thanks to mp3s, the number of songs earning for composers has increased due to various Long Tail effects – and so therefore we can rely on technological advancement and the market to solve any issues of cultural lockdown – and, further, that this can only happen under the status quo (and, presumably, further extensions of term);
3) Across-the-board fixed term licensing is better for the clients you represent than renewable and theoretically indefinite ones.
I don’t think I agree with any of these premises. And there’s one further unspoken premise in here that I also don’t agree with: that ‘Heartbreak Hotel’ only belongs to a songwriter and their publisher. That may be true in a strictly economic sense, but it’s not true in any cultural sense.
Perhaps I’d be more clear if I said ‘Danny Boy’ or ‘Happy Birthday’.
But this is to detract from the main crux of my argument. A renewable 5 year copyright period enhances rather than threatens all of the things you seek to protect. We agree that you should be able to earn money for your clients – and that more and more artists should be able to earn from their music.
Where we seem to disagree is the idea that everything else should form part of a vibrant and open cultural domain.
We could do away with music copyright altogether, I suppose. The way things are going, it’s getting harder and harder to enforce and there are movements in some countries (primarily in Scandinavia, I believe) to do just that.
What doesn’t surprise me, is that the people rooting for a reduction or abolition of music copyright aren’t, as a rule, music composers themselves.
I really could do with people taking less liberty with my work and money. For me – even if I don’t earn a penny off my copyrights – the fact that no (c)rapper is going to sample my work for his half-rumped “tracks”, ‘coz he can’t write a cachy tune himself, is a sufficient reason to continue to enforce copyrights for as long as possible.
Andrew, I understand that you’re perfectly content with the free availability of your own work (as in this blog), but that is your choice. I wish that for once all the advocates of more freedom in music availability would listen to what the musicians are saying: music is dying in steps, and your proposition is another nail in the coffin.
Wishing you a nice day.
FZ
wow – I perused the comments since there were many already. I won’t touch the orphan works aspect of this but I will say this, what would constitute an “economically viable” work? one that is selling within the 5 years copyright time frame? But selling how much? who determines that?
Because let’s take the Velvet Underground catalog as a whole. It didn’t really start selling until well into the 80′s when their label was doing re-issues and comps of their songs. So under your argument you would say, tough, you now get no money for the songs you created? Not only do i think that’s short sighted, but it’s completely asinine and probably coming from someone who has never made money from their creations before.
And these works that are created and protected that aren’t “economically viable” say, they aren’t “locked away” as everyone here seems to think, they’re out there, people may or may not hear it, they are usable if you want, just approach the artist. They probably will take $50 from you to get a lifetime sample or for use in your indie movie, offer it up, it’s the least you can do if YOU think it’s a viable track to use. If not, use it anyway, see if anyone notices, and if they do, suffer the consequences.
It sounds like this post was written to be provocative instead of actually attempting to discourse on this issue productively.
Your plan reminds me of manufacturer’s coupon incentives. Many companies offer rebates on their products as incentives because they know most people will forget to send it in or miss the deadline.
You write: “2% of all music that has ever been released in a commercial format is currently for sale in any way, shape or form.”
Your whole idea seems to be based on this loose statement with no facts or sources to back this up.
I don’t know if you are really that out of touch with reality or if this is a stab at “sensationalistic” journalism but it puts a major hit on your credibility IMO.
JP
I would say ten years, but the basics of the argument are sound and just.
Copyright is broken, it’s being abused, it’s been made far more powerful than it was originally intended, and it does not work as intended. It’s mostly been abused by corporations who use it and their lawyers as hitmen to take out any one who has new business models or creates new works.
Copyright, like the patent system, doesn’t work properly, as intended, and needs to be changed. Corporations control too much, lobbyists control too much, and the people have no control.
Welcome to 1984, we are but the sheep. Big brother is watching. Freedom is but an illusion.
Great article! The people at TechDirt have been tossing your idea around too.
Feel free to stop by and comment!
http://www.techdirt.com/articles/20080721/1442081747.shtml
Andrew,
It seems to me that many rights holders are on the defensive because they feel like they will lose something when they no longer hold a copyright. I don’t know how this can be properly refuted. Certainly the only thing lost is exclusivity. An artist can still perform and sell and otherwise monetize his work even after copyright has expired. Out of the gate he has a strong competitive advantage: he created the work.
How do you explain to someone that their true value is not really in what they produce, but their talent and ability to produce it? Paul McCartney commands $100 per seat concert tickets because he is Paul McCartney, not because he may or may not sing I am the Walrus that night. I could perform the entire white album and still not get $10 per ticket because I’m not Paul.
I said it on Techdirt and I’ll say it here:
Just because a new system is not ‘more unfair in your favour’ than the old system, that does not necessarily make it ‘more unfair’.
DUBBER – Just because a new system is not ‘more unfair in your favour’ than the old system, that does not necessarily make it ‘more unfair’.”
Your statement is true on a semantic level and if it’s taken by itself in no relation to the world. What you are proposing is that intellectual property expires after 5 years if it’s A) no longer monetized and/or B) if it were never registered properly within 5 years of it’s creation. That is a ludicrous proposition in a capitalist system. And unless we’re talking about master sound recording rights here, anyone can get a compulsory license for usage if they want to record a song themselves. They have to pay a fee. But the ability to exploit it for commercial purposes (ie: for an advert to sell a commodity) should lie with the owner.
you wouldn’t want a song that you wrote being used by a political candidate that you oppose would you?
And in this day and age of DIY, people are investing in themselves more and more, so why take take the ability of ownership & monetization away from them?
Bob,
Free speech is a tricky thing. If I want it, I have to make sure everyone else gets it too. Do I like my political opponent using my song? Not really. Do I feel the need to stop him? No. I value open culture and my own free speech that much.
Benjamin Krueger -
I value free speech too for everyone, but someone using my song that I created for a use not approved by me, is not free speech. It’s a violation of ownership and that’s the point i’m trying to make here.
Free speech is not part of this argument. Free usage and doing away with ownership is.
Bob,
At its core, creative art is the expression of emotions and ideas. It is communication. Nobody can not own communication, or the expression of emotions and ideas. Creative art is speech, and the limitation of its usage is a curb on that speech. The two are inextricable. This is why we have limited copyright in the first place.
You aren’t producing a chair. You’re producing culture. Culture can’t be bottled, limited, or controlled without legal threats and guns. Culture is not property. Even the present law recognizes that.
I have to ask again, what do you lose under the proposed system? The creator maintains copyright if the work continues to be monetarily useful to him. Even if copyright expires, he is still free to monetize his work.
Benjamin Krueger -
Couple of things: you’re confusing Intellectual property with free speech and culture which has no place, however important it might be, in copyright law.
you said: “I have to ask again, what do you lose under the proposed system?” I will tell you. OWNERSHIP. Ownership of discretionary usage of proprietary creations. plain and simple.
My example was a song. That song is a creation owned by me, used at my behest in ways in which i approve. If someone uses it in other ways, they are in violation of my rights. If you don’t like that, then use it with out my rights and if you get caught, pay the consequences. simple as that. but to say that it’s “part of culture” and therefore should be free for everyone to use as they see fit is: A) misunderstanding of what free speech is B) misunderstanding what copyright is C) not binding in a capitalistic system in which I have created my copyright and D) gives NO incentive for creation. it doesn’t spur more.
You said: “At its core, creative art is the expression of emotions and ideas. It is communication. ”
you are correct. it is communication but in a TANGIBLE form. something that you can own, or buy, therefore something that needs protection from others trying to use it with out proper buying or licensing of. plain and simple.
You obviously disagree with copyright, fine. I wish you well, but do not confuse copyright and free speech and culture. Like i have said in a previous post, this blog post was probably not meant to solve this issue, only to inflame and spark controversy. That is fine as well. But as someone who has created music, who has made money of off songs and who works in the music business, this post is in NO WAY connected with the reality of any marketplace. It’s certainly nice fodder for “what if’s” arguments, and probably nice publicity for it’s author.
Dubber wrote:
So let me see if I have this right. You’re saying:
1) The importance of copyright to national economies means that copyright terms can only ever go up, and not down – despite the importance of a healthy and vibrant public domain to a national economy, and the fact that renewable copyright periods enhance, rather than threaten, economic growth in the creative sector;
Tonso responds:
Copyright law is not global. Copyright law exists on a country by country basis. One law does not fit all. Consequently, to implement your suggestion, copyright laws in each country of the world would have to be changed. A virtual impossibility given the fact the most countries understand that compensating original creative innovation is what will drive their economies – and their cultures – forward in the future.
Will copyright terms continue to increase … unlikely. Will they decrease? Never, because of the untold number of agreements that have been, and will continue to be entered into based on the term of copyright that currently exists. It’s called ‘taking’ to destroy commerce by voiding contracts legally entered into in good faith.
As to “a healthy and vibrant public domain,” you must understand that most commercial distributors of public domain works (and it’s a big business) exist because they have minimal costs associated with the development and marketing of product the distribute and they don’t have to pay royalties … three massive cost saving that usually have little effect on the prices they charge for the product they offer which are not that much different from the prices charged by those who do incur such costs when investing in – and offering – original material.
More importantly, they add nothing new to our culture. These people are scavengers and scum bums. Broadening the availability of valuable material to people like this by devising methods, such as yours, that could, very well, deprive original creators of their right to earn income from their work is unconscionable.
2) Thanks to mp3s, the number of songs earning for composers has increased due to various Long Tail effects – and so therefore we can rely on technological advancement and the market to solve any issues of cultural lockdown – and, further, that this can only happen under the status quo (and, presumably, further extensions of term);
Tonso responds:
Cultural lockdown? What I’m seeing is cultural expansion as DRM melts away and original materials that haven’t been easily available in the past are there for all to peruse. What’s wrong with composers … and artists, and background musicians and singers and their pension, welfare and health programs from profiting from their creative innovations?
3) Across-the-board fixed term licensing is better for the clients you represent than renewable and theoretically indefinite ones.
Tonso responds:
Yes. Your suggestion adds an additional layer of confusing licensing problems for users to work through while offering a mine field of never ending renewal bombs that could inadvertently deprive original creators – especially those who, in this new DIY era, elect to handle their own interests – of their right to earn a living.
Hasn’t the Creative Commons been damaging enough to creators who don’t understand what they are signing away? We have a whole generation on creators that have been screwed over by the CC and have yet to find out how they have done themselves in.
Additionally, every country in the world would have to establish a ‘renewal’ infrastructure … who would build it and who would pay for it? The U.S. Copyright Office, for instance, can’t keep up with its work load now … how will it handle millions upon millions of additional registrations every 5 years. Who would handle the administrative burdens and costs for continually renewing copyright in hundreds of countries around the world?
Dubber wrote:
I don’t think I agree with any of these premises. And there’s one further unspoken premise in here that I also don’t agree with: that ‘Heartbreak Hotel’ only belongs to a songwriter and their publisher. That may be true in a strictly economic sense, but it’s not true in any cultural sense.
Perhaps I’d be more clear if I said ‘Danny Boy’ or ‘Happy Birthday’.
Tonso responds:
The cultural value of ‘Heartbreak Hotel’ exists because it’s potential economic value existed long before the song was created.
To read your comment, “I also don’t agree that ‘Heartbreak Hotel’ only belongs to a songwriter and their publisher. That may be true in a strictly economic sense, but it’s not true in any cultural sense.” is very disheartening. It shows how little understanding or empathy you have with the creators who read you blog.
It’s thrilling to have something you have created become a cultural icon, a meme, a gasp evoker when it is revealed that your created it. And, sure the economics of creating a hit can be nice … but the pride of authorship is something no one should try to take away from the creator which is exactly what your comment says. You know: “Thanks for dropping the tune, Charlie, we’ll take it from here”
Get back to me when you’ve created something known by millions around the world that has become an part of the soundtrack of their lives and tell me, then, if you wouldn’t be offended by the insensitivity of the comment you made.
Dubber wrote:
But this is to detract from the main crux of my argument. A renewable 5 year copyright period enhances rather than threatens all of the things you seek to protect. We agree that you should be able to earn money for your clients – and that more and more artists should be able to earn from their music.
Where we seem to disagree is the idea that everything else should form part of a vibrant and open cultural domain.
Tonso concludes:
Your mind appears to have been clouded by Larry Lessig’s intoxicating siren song as you repeat his double speak – ‘vibrant public domain’ and ‘cultural lockdown’ verbatim. Lessig has designed these, and similar phases, to do one thing … help effectuate his long term goal of completely eradicating copyright, thereby, destroying the creator’s right to earn a living, which, in the long run, would have a devastating effect on original creative innovation.
Lessig is nothing more than a pimp for the creeps that inhabit the public domain industry which he proved conclusively during his humiliating defeat before the US Supreme Court.
You really need to clear you head of the Lessig message long enough to consider how your renewal plan could be devastating to those who read your blog for the generally sound advise to provide.
Wow. Lessig sounds really evil. What do you suppose his motives are?
I could go point for point all day, but I think I’d like to sum up my thoughts and then listen for a while.
A lot of you are stuck in the past. “I want things the way they always have been”. “I’ve been in the industry a long time and I know what’s what”. “I have always had this and I don’t want anything else”. Hey, I understand. Change is hard, and you’re happy with how things have always been in your lifetime.
Change is coming, and we can’t stop it. Many of us wouldn’t try if we could. If you do not adapt, you will be left behind. There is a teeming mass of 1.5 billion networked people, with at least a billion more on the way, who are fundamentally changing how creative works are consumed, and if you don’t find a way to make them happy they will find their own way. iTunes can’t dam this flood. No copyright laws can stop it. These people cannot be sued out of existence. You cannot delete every file-sharing service. You cannot stop other more forward-thinking creators from adapting to this new era. And there will be plenty of artists who will find new and innovative methods of working in this new system without the expectation of perpetual ownership and perpetual profit. Those who adapt will out-work you, out-compete you, and they will be vastly more successful.
You have a say in the matter right now. If you don’t start thinking about how to best serve both yourself as a creator and your audience in a world where creative content is ubiquitous and unfettered, the audience will eventually decide for you. You won’t have a say in the matter later.
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.
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.
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?
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.
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.
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.
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.
Benjamin Krueger -
basically it’s about choice. the choice to do or not.
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 -
@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.
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!
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. ;)
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
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
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 …
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 ;-)
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
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.
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.
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