An Explanation Of My Views On Copyright Part Two

4) The Explanation

This is the fun part – I get to tell you my conclusions, and how I have reached them. I don’t expect everyone to agree with me. While I’m egotistical enough to believe that I’m always right, I’m smart enough to realize that many other people are just as egotistical as I am.

But here I have a chance to convince you, so here we go. Part of this may seem repetitive, but an argument is like a wall made of bricks. Without the ones at the bottom, the top collapses. I will provide links to material available on the internet, and also links to places where you can purchase materials that aren’t.

So, why do we have copyright?

The general explanation is that it protects creators. This is partially true, and quite frankly that it does so at all, even as imperfectly as it does is an accident. Copyright exists because a Corporate Lobby in England wanted protection. The original draft of the legislation was in effect a corporate wish list.

But the legislation changed. Most people have no idea what England was like in 1662 when the Licensing Act of 1662 was enacted. During that period of time, the nobility controlled a large portion of the country. One meaning of the word Privilege is:

the principle or condition of enjoying special rights or immunities

The Nobility was ‘Privileged’ under that definition. So were large trade groups, like the Stationers’ Company. And thereby hangs a tale. The original draft of the legislation that became the Statute of Anne became modified in Parliament. There is no documentation that I know of that explains why it was modified, but I can guess. Privilege. Someone who had interest in changes in the law, was able to convince enough members of Parliament that the changes were advantageous.

Possibly they pointed to the works of the great playwright William Shakespeare (1564-1616) as an example. Under the Licensing Act the printers could print and sell Shakespeare’s work without compensating the writer’s heirs. Of course under the Statute of Anne they could as well, since it would have been no longer protected.

In any case, someone got to the politicians, and made an argument that was convincing enough that changes were made. We can surmise that the Stationers’ Company was less than happy with the changes, after all, they now had to pay for the privilege of publishing a work, which they did not have to do before. This lead to another disruptive change – a class of professional (for pay) writers soon developed. Note that there is other legislation after the Statute of Anne that encouraged these changes, this is a simplified explanation.

From this point on I’m going to be skipping a variety of material, such as when exactly copyright was extended to cover the other materials it now covers. I’m less interested in the technical details, than I am in the sociological effects of copyright law.

The Statute of Anne was only effective in England, but other countries introduced their own copy control regimes. Many of these laws were implemented to control the output of printers and writers, so that ‘dangerous’ things wouldn’t be published. Often books had to be approved by official censors, whether political or religious. This has changed in most countries, though there are still some that try to limit expression. One historical example of the attempt to limit expression was the Soviet Union requiring the licensing of photocopiers.

An Artificial Construct

All laws are artificial constructs. In theory each law is supposed to benefit society. In practice each law limits the actions of a portion of society. Take for example the seat belt laws, which most jurisdictions now have. A requirement to wear a seat belt is an impingement of the right of the driver and his/her passengers to choose.

That seat belts save lives is generally not debated, almost everyone agrees that they do. They also reduce injuries in accidents. But should the government be able to tell you how to operate your motor vehicle?

The general consensus is yes. By reducing injuries and deaths, seat belt laws have reduced societal costs.

Property

Property is an important concept western societies. The ability to buy and sell is the basis of capitalism. Various laws and regulations often put limits on the ability to dispose of or purchase property, as anyone who has ever purchased a house will attest.

Intangible property is a relatively new concept, which did not exist prior to the adoption of copyright as a concept. While trademarks had been in use since Roman times, registered trademarks are a relatively recent concept.

In a discussion on patents one of the participants said:

At the same time – you do neglect the aspect of ownership in everything that you have said. I was just pointing that out (amazing how often I have to do that with the anti-software patent crowd – which reminds me, I am still waiting for some basic answers from you on the other thread).

Ah, yes, ownership. An interesting concept. The problem of course being how to define ownership. Consider J.K. Rowling – a couple of years ago she claimed that nothing had influenced her Harry Potter novels, and that she, and she alone owned all of the ideas and plots in them. But when the first one was published, myself, and thousands of others noted the similarities with Tom Brown’s School Days which was published in 1857, and is possibly the first boarding school novel. There are differences of course, Draco Mallfoy is a lot like Harry Flashman, but not the same. In one book the school game is cricket, in the other it’s quidditch.

So how do you determine who owns an idea? Can someone own an abstract (not physical) construct? For that matter, who owns air?

Why Does This Affect Copyright?

Simple. Copyright is an relatively recent artificial construct, which made an intangible idea into property. This happened as society was attempting to deal with a Disruptive Technology. It was also a response to a lowering of the high cost of making copies (previously scribes had hand copied manuscripts – which was extremely labor intensive). But the costs were still high, and the Stationers wanted to ensure that they would get a payback on their investment.

All laws are attempts by society to deal with a disruption of some sort. Seat belt laws were an attempt to deal with the rising death toll caused by the widespread adoption of motor vehicles. Copyright laws were an attempt to deal with the new fangled printing press. Gun laws are an attempt to deal with the urbanization of society. Owning and using a gun in the far north is one thing, owning and using a gun at Yonge and Queen in downtown Toronto is another.

Hacks of Copyright Law

There have been a variety of attempts to ‘hack’ copyright law to serve other purposes. The most famous is the General Public License, which was designed to ensure that computer code could not be made proprietary. To most artists this is a weird concept, however in the programming world it was extremely important. Prior to the GPL, it was possible for a company to take work that had been put into the public domain, use it in a product, and not give back the changes they had made.

The General Public License had a huge advantage both for the programmers working on the project, and for companies that used the project. Take IBM and Oracle for example. IBM employs programmers to work on the Linux kernel project (Linux is the bases if the Android phone software). Oracle does the same.

Why would they do this if they couldn’t keep what they’ve done? Simple. No one else can either. Any work that IBM does helps Oracle. Any work that Oracle does helps IBM. Without the enforced sharing requirement of the General Public, neither would benefit.

Note that this blog uses the Word Press software package, which is licensed using the General Public License. Curiously the blogs of Barry Sookman and James Gannon also use Word Press, even though both of them have declared in the past that ‘FREE’ is not a good thing.

The Creative Commons licenses are another attempt to hack copyright law. I use the Creative Commons Canada License 2.5 for all of the writing on this site. If you read it, you will note that you can copy or modify anything on this site, and publish yourself. My only requirement is attribution. In other words you must either list me as an author, or as a source.

The Internet

The Internet is another disruptive technology. It has made communications easier and faster than ever before, but by doing this it has caused damage to a wide spectrum of existing systems. Consider the post office for example. I had to mail a letter today. It’s the first time I’ve mailed a letter in a long time. I’d forgotten how bad the glue on an envelope tastes.

It has also hurt brick and mortar stores. You can purchase nearly anything online, including Books (Indigo), computers, musical instruments, craft supplies, etc. A friend of mine who lives in Mississauga bought a harp – it was shipped to him from Pakistan and arrived in less than a week. I cannot think of a single musical instrument store in Southern Ontario that stocks harps.

Curiously neither the Music nor Film industries seem to be concerned about this.

And of course if you know where to look – or use a search engine – you can find just about every song or video you could want in electronic format somewhere, and download it without paying anything. Is this bad?

Yes and no. Let’s look at music first.

Above I mentioned that the music industry comprises of many diverse elements, and that the large associations only represent a small portion of the industry. The large corporations represented by the RIAA/CRIA are involved in promoting artists and distributing music. This they do by taking a large proportion of the money, as I wrote in a previous article, Corporate Copyright Scofflaws 0006 – The RIAA Member Companies. They have done this for a short period of time historically – the phonograph was invented in 1877. For all of human history prior to this, music could only be listened to live.

Due to the costs involved in a production run of phonograph records, the recording and distribution industry assumed a gatekeeper role. If  an act was different, or didn’t fit a popular genre, they wouldn’t get a record deal. One act that was negatively affected was the Beatles, who were considered so strange that it took them a while to land a recording deal. Phonograph recordings are also commonly called records, or vinyl (from the vinyl material use to manufacture it).

Variations on the phonograph were in common use up until the 1980s, but other technologies had come into use. Reel to Reel tape recorders came into use in the 1940s, and offered a lower cost method of making small runs. An uncle of mine was fascinated with Eastern Religions, and ordered reel to reel tapes from India during the 1960s. Reel to Reel prerecorded tapes were more expensive than phonograph records, but unlike phonograph records it wasn’t necessary to print large quantities. If you had two machines, and a patch cord, you could set up in business yourself.

The later development of cassette tapes caused another change. Reel to Reel had never been able to attain widespread penetration of the market due to costs. The Compact Cassette system was far less expensive, and smaller. You could install a cassette player in a car, something that was not feasible with either phonographs or reel to reel players. The problems with cassettes was that you could also, HORROR of HORRORS record on them, giving birth to the mix tape culture. Curiously artists didn’t notice a decline in their revenues from this.

Cassette Tapes also dropped the cost of entry into the market for artists, and home recording by independent acts started to blossom. For example the band Boston has done all of their recording in a home built and designed studio, something that would not have been possible much earlier.

The adoption of the cassette also started the unraveling of the RIAA/CRIA member companies position as gatekeeper. Filk is one of many alternative music styles. Filk is not widely popular, very few Filk Albums were ever distributed on vinyl. Leslie Fish and the Dehorn Crew recorded Folk Songs for Folk Who Ain’t Even Been Yet in 1976. A couple of years later they recorded Solar Sailors. With the widespread adoption of cassette tapes, and the lowered cost to market entry, a wide variety of small labels sprang up, including Off-Centaur, Firebird, Wail Songs, and others, to record filk, music that the larger labels were not interested in. The same is true of other alternative music styles.

The next major disruption was caused by the Compact Disc format in 1981. Initially the RIAA/CRIA member companies considered Compact Discs not copyable, however they soon discovered that the continually declining price of computer technology meant that nearly every home with a computer could copy their own discs.

The Compact Disc also lowered production costs the alternative labels, once again causing an expansion of the total number of companies producing recorded music. While this was occurring the large, mainstream industry was undergoing a series of mergers and acquisitions, which cut the competition to find new artists. This caused mainstream artists to look at the alternative labels, or at doing their own production work. It also caused a new business model to arise – the limited run pressing operation.

The internet is the latest, and most radical shift yet. In effect the huge costs that once justified the major labels existence have evaporated. The major labels aren’t happy with this change, as it affects their profitability. The same issue also affects other industries, like the film industry.

While this is bad for the major labels, the artists now have considerably more freedom than they ever had before. I know of a variety of acts who are using the internet to reach out to new fans, fans who they would never have been able to reach before. Acts who could have never made a living in music, are now doing so. An example is Tom Smith, ex-banker, now full time musician. Yes, Tom is a relatively small player, but he’s doing what he loves.

Is it bad that Tom can make a living using the Internet? To quote Michael Lynton of Sony Pictures, ‘I’m a guy who doesn’t see anything good having come from the Internet.’ I’m quite sure that Tom would disagree with him. So would Trent Reznor of Nine Inch Nails, who puts all of the band’s music up on it’s website as a free download. If you like it, you can order CDs and other things.

So there are advantages and disadvantages. Let’s go further.

The Question

As a society we have to ask ourselves a question. Do we want to lock ourselves into an outdated business model, or do we want to move forward? This isn’t solely about making money (though some people will tell that it is), but while it’s not wholly about money it is about money. As mentioned above, musicians generally don’t make any money from album sales through the major labels. For those who don’t believe that article, because I wrote it, I’m going to provide some extra links.

Record Labels Screwing Over Musicians Is Nothing New; The Buddy Holly Edition

Courtney Love does the math

The Problem With Music by Steve Albini

Lecture at Middle Tennesee State University, March 12, 2004 by Steve Albini

The Internet Debacle: An Alternative View by Janis Ian

My Hilarious Warner Bros. Royalty Statement by Tim Quirk

Pirated by iTunes, Artist Turns to BitTorrent

Record industry faces liability over ‘infringement’

Itunes Music Store – Facelift for a Corrupt Industry

Rip Offs – Article for both sides

Band Sues Record Label for Digital Music Distribution Ripoff

The Story of Be Bop Deluxe’s Bill Nelson and How His Record Label Ripped Him Off

C2M2 Music Rip Off Northwest Musicians

Q & A with Trent Reznor of Nine Inch Nails

TOTAL MADE THIS MONTH USING TWITTER = $19,000. TOTAL MADE FROM 30,000 RECORD SALES = ABSOLUTELY NOTHING. Amanda Palmer

For those who aren’t involved in the industry, yes, musicians do complain this much about their labels. Well no. Actually they complain more in private. So why do they sign with labels? Because for a long time, they had no choice if they wanted to get their music heard by more than their friends and family.

Are the labels really that bad? I don’t know. I’ve never had a recording industry contract. I can only go by what I’ve been told, most of which I was asked not to repeat. And what I’ve read. The stuff above is publicly documented. Sure, some of the court cases are still in process, and it’s always possible that the label will win. That is not the same as saying that they were in the right. For that matter they could be in the right, and still treating the musicians like dirt.

And if you search, you’ll find the other side represented. The article written by Michael Geist was responded to by CRIA lawyer Barry Sookman, and Barry claims that what Michael wrote is wrong. Again, the case is still in process, and may take years to complete, and Michael didn’t help by making a basic math mistake.

If you read the Amanda Palmer interview, yes, she complains about her label. She also mentions how she was still able to make money, by being creative. The point being, that the vast majority of artists make little or no money from their recording contracts. Industry reps may try to deny this, but it’s true. In this particular case, copyright is not serving the artists.

And of course the Big Four record labels aren’t Canadian. Canadian law is supposed, in theory, to be written for the benefit of Canadians. Bill C-32 appears to have been written for the benefit of the Big Four. How exactly this is in the best interests of Canadians, James Moore is not willing to state. In fact I’ll go so far as to state, that based on my conversations with him, that he doesn’t have a clue what he’s doing, at least in this case. He may be a perfectly nice guy, but having someone who appears to know so little about a subject writing legislation for it is problematical.

Similar legislation was introduced in the United States in 1998. The Digital Millennium Copyright Act has some of the same features as Bill C-32, though there are a lot of differences. The DMCA was supposedly written to bring copyright law in the United States into line with the 1996 WIPO Copyright Treaties, however it is a defective implementation (for example the WIPO treaties state that the choice of using DRM lies with the author, the DMCA doesn’t).

Much ink was wasted at the time that the DMCA was drafted claiming that it would ‘protect the artists.’ If you read the DMCA though it clearly is not aimed at protecting artists, instead it is aimed at protecting the Big Four labels. In simple terms, the legislators in the United States lied to the artists, and to their fans as to what the DMCA was designed to do, and what it could do.

So what do we need to do with our copyright law?

First, we have to realize that there is more than one problem in play. Some issues are:

Computers have made copying a trivial task, which destroys an older business model.

The internet has made distribution a trivial task, which destroys an older business model.

Copyright has to benefit the Canadian people as a whole.

The problems that artists are having are more due to consolidation (mergers) of the record labels than to copyright.

Copyright does need to be changed to acknowledge new technologies, but the WIPO Treaties are 14 years old, do not reflect the current situation, and therefore we should not ratify them

Copyright must handle for profit actions differently than not for profit actions.

Another issue is the CD Levy. A lot of independent artists I know get screwed by the CD Levy, because they can only afford short runs. Unless you are running 300 or more discs, it isn’t worth the time and effort to use the system to buy discs without paying the levy. This includes the vast majority of Canadian artists.

SOCAN is another problem. The way the law is written which caused the formation of SOCAN, it is impossible for an artist to opt out. Take for example a musician playing the bar scene. The musician can be using all of his or her own music, but SOCAN still collects, and no, they won’t get the money. It goes to the big names.

Another part of the problem is the Canadian Content Regulations. Laurel Russwurm wrote three articles about this, which are here, here, and here. Laurel however missed a couple of points. Maybe she’s younger than I am, and doesn’t remember the debates, but I do. One of the reasons that the Canadian Content regulations were implemented was because of Payola. For those not familiar with the term it means:

Payola, in the music industry, is the illegal practice of payment or other inducement by record companies for the broadcast of recordings on music radio, in which the song is presented as being part of the normal day’s broadcast.

In effect, by ‘paying for playing’ as it is also known, the record companies used paid for airplay as part of their marketing system. This of course locked out the smaller labels, who were unable to pay, and was an anti-competitive act. By legislating Canadian Content, the government was able to lock out the larger foreign owned firms from a portion of the market. This allowed a variety of Canadian artists access to radio time that they would not have had otherwise.

The situation has gotten worse since that time. Because of mergers between record labels (also mentioned above), there are now four absolute behemoths. None of the Canadian owned labels has the money to compete.

Laurel has noted that many acts no longer use the Canadian Content label system on their work. I don’t know how accurate her report was about the reasons. Whether she is correct, or the artist didn’t know about the labeling system is immaterial. Part of the issue is that the current labeling system doesn’t function properly.

And now I’ve got to explain why it doesn’t function. The Canadian Content regulations cover four areas:

Artist – if the artist is Canadian – 25%

Songwriter – if the songwriter is Canadian – 25%

Recording Location – was the music recorded in Canada – 25%

Production Location – was the disc manufactured in Canada – 25%

So we have a situation, where a singer/songwriter wrote a song in Canada, recorded it in Canada, and manufactured it in Canada. 100% Canadian Content? Um, know. His songwriting partner is an American who lives in Canada. This happened to Bryan Adams. FAIL.

Or consider the hit movie Juno. Filmed in Canada, using Canadian talent, but financed by Americans, and the setting was supposed to be Minnesota. FAIL.

Or a Canadian singer/songwriter writes, and records their work in Canada, but uses a disc manufacturing operation in the United States. This happened to a friend of mine, who doesn’t want to be mentioned. FAIL.

One of the big issues hurting Canadian artists is a dysfunctional Canadian Content system. If you sneeze, it’s no longer 100% Canadian. Because of this I think that the Canadian Content rules need to be modified, preferably after a consultation which does not allow the corporations to file submissions. Corporations can’t vote. They shouldn’t be able to file submissions. Whatever rules we pick, have to be simple, and have to make sense. I know this will make Barry and James happy, but hey, I’ve been making them happy for a while, and I’m not going to stop now.

Second, the Canadian Content regulations require 35% of airtime be Canadian Content. Originally it was set at 25%, then raised to 30%, and finally to 35% in 1998. Is this enough? I don’t think so. I think that it should be 50%. There’s a lot of home grown talent who would love to do things, but can’t, often because as Laurel points out, the minimum is also the maximum. If you listen to the radio, and keep track, exactly 35% is Canadian Content. No more, no less. It’s the same on TV.

Newscasts, sports shows, etc. are considered Canadian Content. Should they be? What if the Toronto Maple Leafs are playing the Florida Panthers (and yes, I know that a lot of Canadians winter in Florida). What if the newscast is covering the American Presidential elections? What if…

In Closing

Canadian Copyright law does need to be updated for the Twenty-first Century. The problem is that the WIPO template that the government used is outdated, and does not fit Canadian interests. It is heavily slanted towards an older business model which is not functional in the present day, and does not protect artists. Four major issues are exceptionally important.

1) Copyrights should be non-transferable, except through inheritance. Business wishing to use a copyright should have to lease them, leases should be for no longer than five years, and no automatic renewals should be allowed. Works for hire should only be allowed in extreme cases, with what is defined as an extreme case being opened to public consultation. For an example, recording the Toronto Symphony Orchestra could be considered an extreme case, due to the number of people involved.

2) One of the functions of copyright is to encourage the public domain. Due to the extensions that have been added, the current copyright period is too long. At one time I suggested that it be dropped back to twenty-five years. That may be too short. One option would be to make it twenty-five years unless a copy of the work is filed with the Canadian Archives, in which case it would be fifty years.

3) Technical Protection Measures aka Digital Rights Management should be banned. For a through set of arguments why, please read this.

4) Canadian Content is heavily tied to copyright. Without updating the Canadian Content regulations, any update to copyright law will not serve the publics or the artists interests.

I know that none of these suggestions will be universally popular, however I feel that they will better serve the Canadian public and Canadian artists than Bill C-32. We have a lot of fantastically talented people, we need to give them the tools to reach their audience.

Remember, law is a method of shaping society. Canadian law is supposed to shape Canadian society in ways that are for the betterment of the Canadian public.

Regards

Wayne Borean

Tuesday September 7, 2010

Updated Friday September 10, 2010 – spelling error corrected.

Lists of Canadian Talent:

List of Canadian musicians

List of Canadian bands

List of Canadian actors

Part 2

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2 Responses to An Explanation Of My Views On Copyright Part Two

  1. This is a really good series. Again, I’m learning a lot.

    You’re absolutely correct, I had no idea about the countering payola aspect of CanCon. And I would never have guessed. I realize that this is a different time and place, but that seems to be a clunky solution. (Like the CD levy, which creates a whole series of wrongs in an effort to make a single wrong right.) I would think it would be better to write laws to prevent that type of abuse from happening.

    I dislike the CD levy for many reasons. I’ve long assumed it probably worked to make CD distribution more expensive for Independent artists, but this is the first corroboration I’ve seen for that theory.

    Regarding my notion many acts deliberately choosing not to use CanCon labeling, that was pure speculation based on the fact that none of the recent Canadian CDs I’ve purchased have used it.

    • You’re absolutely correct, I had no idea about the countering payola aspect of CanCon. And I would never have guessed. I realize that this is a different time and place, but that seems to be a clunky solution. (Like the CD levy, which creates a whole series of wrongs in an effort to make a single wrong right.) I would think it would be better to write laws to prevent that type of abuse from happening.

      Most people have forgotten about the Payola reasoning. For some reason I remembered it.

      At the time that the original Canadian Content regulations were written, there was no actual proof that Payola was a problem in Canada. To the best of my knowledge no one here was charged with it, and I’m not even sure if it would be considered illegal under Canadian law. And if it was illegal under Canadian law, how much would you want law enforcement to spend pursuing it? Or would it be more cost effective to destroy the ability of the foreign labels to use Payola against Canadian artists?

      The above are some of the points that I remember being made at the time. But that was over thirty years ago, and it wasn’t all that important to me at the time, so I may be remembering parts of it wrong. After all I wasn’t there for the meetings which made the decisions. I don’t know all of the details.

      But 2+2=4. Any action has an equal and opposite reaction. If a society makes and enforces certain laws, they will have certain effects, EVEN IF THOSE ARE NOT THE DESIRED EFFECT.

      Whether my memory is correct or not the Canadian Content regulations would damage the ability of the foreign labels to use Payola as part of their marketing system in Canada. Other countries have similar laws (Australia for example) which have driven the rise of home grown talent there, and I’ve heard that those rules were enacted using the same sort of reasoning. From Wikipedia:

      Other countries employ similar quota systems. For example, Australian broadcasters are required to broadcast a certain percentage of Australasian content alongside international content. Similar domestic content quota laws also exist in the Philippines, Mexico, Nigeria, France, Israel, Ireland, South Africa, Jamaica, the United Kingdom, and New Zealand. (In the UK, Ireland, and France, this rule is now a European Union content rule rather than a domestic content rule).

      Curiously the countries that have enacted content rules tend to have stronger creative sectors than those that haven’t. If you want to grow a strong domestic sector, you have to support it. If you don’t support it, everything will end up being made in Hollywood.

      I dislike the CD levy for many reasons. I’ve long assumed it probably worked to make CD distribution more expensive for Independent artists, but this is the first corroboration I’ve seen for that theory.

      It also has negative effects on small software companies. A long time ago I was trying to set up a software company, and had to drop the idea after a discussion with someone in Ottawa that ended with ‘So you won’t allow me to buy compact discs without paying the levy. You would rather I move my business to Buffalo.’ The response was that if I wanted to move to Buffalo, I should do so.

      I don’t know if the person I was talking to was clueless, or the regulation was changed later. It is possible to buy compact discs levy free, but you have to buy a large number of them, and the record keeping requirements appear to be designed to make paying the levy cheaper. This was disastrous for up and coming artists until the internet made distributing music dirt cheap. Which is of course one of the reasons that the labels do not like the internet. With the loss of control over the distribution system their sales are dropping. Smart artists don’t sign with the labels, they do it privately.

      Regarding my notion many acts deliberately choosing not to use CanCon labeling, that was pure speculation based on the fact that none of the recent Canadian CDs I’ve purchased have used it.

      I’d be really curious to find out why they aren’t using the label. I know that we haven’t used it yet, but I wasn’t even aware until I read your article that there was a label. Now I need to do some research into what is needed to label product. Hum, there’s another article idea :)

      Wayne

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