The debate about copyright extension on sound recordings is already becoming obfuscated by related, but separate concepts. There is a great deal being written about the situation, some of it informed, some of it less so. What does seem to be universal is the transparency of agenda. Perhaps it just seems that way because my sources are all online – web-journalism seems to me to be dreadfully guilty of using editorial as a thin veneer of respectability disguising manifestos of intent or beliefs. I’m not against anyone holding an opinion, even if it is contrary to my own. Obviously, there’s a seductive appeal to the idea of everyone agreeing with the way I see things, all the time. Seductive, but impractical – it only takes a half-hour’s worth of chatting on Twitter to convince me that the views I held on copyright extension were flawed. I still don’t quite know why a musician’s family should continue to be paid for a piece of work that the musician did over a hundred years ago. The copyright extension applies to the sound recordings made by musicians, not the act of composition (so, for example, Louis Armstrong’s version of ‘It’s a Wonderful World’ is treated separately to The Ramones’ version). As I say, why the spouse and offspring of a musical performer should stand to benefit from work done decades ago (the copyright now extends to seventy years after the death of the musician), is difficult to establish. In fact, it’s the aspect that seems to provoke the most vehement reactions in the critics of the new law. Why, say the plumbers and taxi drivers ask, can I not continue to be paid for work I did fifty years ago?
The answer to that one is simple, but easily missed. Certain musical recordings continue to generate revenue. Where that revenue goes, is the issue. Without copyright laws determining that the revenue from, say, Beatles recordings (some of which were due to come out of copyright in 2013) going to the musicians or their families, that revenue was free to go elsewhere – most likely to the entity selling the record. Emotions and prejudices enter the debate early on, as everyone knows that the technology pundits on the internet consider all manifestations of the music business to be inherently crooked and evil, but the previous copyright situation would have allowed the dominant music retailer worldwide to sell Beatles recordings to the public without paying anyone for their performance on the records. Right now, that dominant retailer is iTunes. Certainly, The Beatles all have plenty of money, and you may feel repulsed at the idea of giving them more. Me, I feel repulsed at the idea of giving Apple more money, for work they did not do. Music copyright exists to protect musicians, always did. Back in the 50s, songwriters and musicians were employed, on a wage, to write and perform songs for record companies. Some of those songs generated huge amounts of income, none of which was paid to the musicians. Copyright laws, over the decades, were introduced, amended, extended, tweaked, appealed, opposed, supported and eventually made law. Much of the time the opposition came from the record companies, who stood to lose millions by the ownership of songs and recordings being diverted from them to the musician. One thing which needs to be cleared up in the opposition to copyright extension, is that being opposed to the idea because you dislike record labels and see them as being parasites sucking the life out of musicians, is a flawed position. Copyright exists to protect musicians from parasitical record labels. The Beatles are an extreme example. They have pots of cash and pots of popular demand. Many musicians have neither. However, it still strikes me as inherently unfair that a random opportunist could release, market and profit from a compilation of otherwise-forgotten songs from the 50s without paying anything to the musicians who performed on the songs. In the late 80s Levis made a series of jeans commercials featuring music from the era, triggering a series of reissued hit records. Would Levis have been more entitled to the musicians’ revenue from those hits than the musicians themselves? Or their surviving dependents?
Anyway, that’s an emotional argument. It depends upon a sense of fair play, and the problem with fair play is that it’s subjective. No football fan ever feels that the penalty against his team was deserved. Similar problems apply here – iTunes probably feel they have a perfect right to profit from the theoretical Beatles records, they provide the server space etc. So, moving away from the emotional argument, there are a couple of other objections coming up repeatedly. Some of them are convincing, some less so:
1. Copyright is responsible for keeping a wealth of culture out of the public’s hands.
There are a great deal of sound recordings rotting away on tapes and acetates in record company warehouses. In some cases, the musicians who recorded the music have no access to those recordings, and would have to buy the rights to the recordings from the record companies if they wanted to re-release them. Evil record industry screwing the musicians again, right? Not exactly. Musicians, on signing a contract with a record label, often choose to swap their performance rights (and income) with the label, in return for a cash advance. The system of advance/recoup has its flaws, and has been debated endlessly, for the moment the system’s merits or otherwise are irrelevant. What matters is that musicians, for a cash payment, often transfer their performance rights to their record label. That can be all of their rights, or a portion, for a couple of years, or for the life of the copyright. It’s not clever to sign over full rights for the full term, but some do. That’s their choice. Whatever the combination of manipulation, avarice, fear, ego and coercion used by either party in the contract, the choice not to sign was always an option. Labels are obliged by law to archive their recordings, although before mp3, to do so was expensive and they didn’t really like doing so. Now there are scads of deteriorating recordings in warehouses to which record labels hold the performance rights. Recordings which labels cannot see a way of making any revenue from, and which, if a musician wishes to reissue them, would mean that musician would have to buy a license to do so. As would anyone else. The musician swapped those rights for a cash advance at contract time, remember, and in this case, hasn’t paid it back. All that said though, this situation is ridiculous. Ridiculous, but more to do with artist/performer relations than with copyright per se. Nevertheless, there should surely be some amendment made whereby recordings which are clearly not likely to be of any further monetary worth to record labels should be made available to the public. As for deteriorating records, a separate issue altogether. Music archiving is a hot subject, with the US Library of Congress declaring last year that digital (mp3, wav etc) files do not constitute a valid form of archiving for posterity. Finding a storage medium that doesn’t deteriorate, and deciding who should be obliged to bear the cost of archiving sound recordings, is an issue. What it has to do with the extension of copyright is unclear though. Should the obligation of archiving rest with the copyright holder? If these recordings were ‘freed’ of their copyright, and made public domain, who would bear the costs then? Obviously there’d be a scrabble to get copies of Beatles records to sell, use on soundtracks etc, and so those recordings would be preserved. What about the more obscure ones though?
Copyright protection would have made all works inspired by previous works illegal.
A weird one this, coming from Shane Richmond’s article for The Telegraph. Led Zeppelin, he states, would never have been allowed to sell their blues-inspired songs if copyright laws had existed on those originals. James Joyce, he states, could not have published Ulysses. Well, firstly, this copyright extension applies to sound recordings, and unless Led Zep had actually sampled those early blues recordings directly into their songs, they would not have been affected. As for Joyce, unless he quoted The Odyssey word for word, would not have been affected either. Being inspired by previously produced art, then interpreting it, has never been outlawed by copyright. Plagiarism is a different set of laws entirely. Authors can quote other works, musicians can use samples. All within the framework of current copyright, extended or not. An erroneous argument and unworthy of discussion.
Copyright hampers innovation.
The idea in this one is that labels will not invest in new talent if they can simply continue to sell back catalogue. Interesting that it’s focused on labels again. Copyright holders are not always record labels. This argument is pretty neutral. It’s impossible to be sure of whether or not a copyright holder will remain content to sit back and enjoy the benefits of their back catalogue and never feel inspired to record new material. Likewise labels. Some might be happy with that, others not. In the case of labels, they are businesses, obliged by their shareholders to strive to increase their revenues. Whether their clearest way to do so is to record and release new material or simply to rest on their laurels – who knows? It doesn’t seem to be a policy mirrored in the actions of the majority of record labels though. With over two-thousand albums released on iTunes every week, it seems more likely that the opposite it the case.
The other most popular form of rebut to the extension runs along the lines of ‘I don’t get paid for the work I did ten years ago, why should they?’
All I can say to that one is that if your work from ten years ago is currently being copied and sold, and you are not receiving any income from that transaction, you need to look into that. It may be the case that there are no copyright laws in existence which serve to compensate you, which would be unfortunate. Rather than attack musicians for having developed the collective strength over the decades to have their rights protected in this way, perhaps you might search for a way of having your own work similarly protected. Analogies such as ‘the architect who built my house doesn’t get paid for seventy years after his death’ are spurious. If his design is published, and copies of that publication sold for profit – he has a right to a portion of the income. No point saying ‘well, the design is the song, the recording is nothing but the paper it’s printed on’. We tend to care a lot more about the sound of Joni Mitchell’s voice or Eddie Van Halen’s guitar than we do about the type of paper a design is printed on.
I should come clean and reiterate the point I made at the start. I’m still unsure on this one. There are a lot of voices making themselves heard, with good arguments both for and against the extension. The problem, as always, is that the internet affords prominence to the viewpoints which reflect best its own dynamic. If the Pirate Party makes a statement condemning copyright law, the truth is that its statement gathers a lot more momentum and reaches a lot more viewers than a contrary view from a record label. The record industry is unpopular with the hive-mind, for many good reasons. That though, is not a good reason to dismiss it automatically in favour of its most vocal opponents. I’ve tackled the criticisms of the extension that I feel are misguided, and flannelled about on the ones that I’m unsure of. I’m by no means convinced either way. Nevertheless, at least I’m willing to have a think about it, and I hope you will too.
2 responses to “Copyright extensions.”
Very interesting Seán. I will read the post again to try to understand the finer points.
Thanks Doug. This one was thrashed out in about an hour in reaction to all the nonsense that was being thrown at musicians in the great race to the bottom that is social media commentary. I don’t really post much up here on the BlancoBlog any more, basically leaving it until we have some newsworthy events to relate. As you know, I write on http://www.trebuchet.com pretty much every day, but unfortunately there’s no comment feature on that as yet.