Copyright and ‘The Left’


11:45 am - February 6th 2009

by Unity    


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On my recent post on the ‘database economy’, Tim F threw me a bit of a curve ball in comments by asking what demands I thought the left should be making on copyright.

Mmm, tricky.

It’s a big subject, not least because its one that difficult to get into in any detail without considering the question of intellectual property, generally, which drags the equally complex issue of patents into the frame. Nevertheless, I think its safe to say that, as a matter of general principle, we should apply the same basic principles to people who earn a living from their creative endeavours as we do to any other workers. A fair day’s pay for a fair day’s work seems a good point from which to start, regardless of whether someone plys their trade on an assembly line or in a recording studio or concert hall.

Creativity is, I think, a good thing and as a society we should be looking to foster and support as much of it as possible. Creativity brings with it certain financial rewards, which are obviously attractive, but it also enriches us all, socially and culturally. That should tell us that we need to pay as much attention to supporting those who express their creativity without seeking financial rewards as we do those who wish to, and deserve to be, paid for their endeavours.

In some respects its easier to talk about some of the thing we (the left) should be looking to support by juxtaposing them against some of things we should oppose.

There was much to like, and consider carefully, in Cablamat’s recent post on the subject of a possible ‘broadband tax’ and Content Compensation Funds but, as a matter of principle, I’m opposed to the idea of a broadband tax, not, as some on the right are, because it would mean that I was paying for content I had no personal interest in accessing (although the thought of any my hard-earned cash going to Simon Cowell is enough to bring me out in hives), but because such a tax would, in practice, still stifle innovation and, to large extent, serve to prop up the existing monolithic cartel of exploitative film, music and media corporations.

Truth be told, when it comes to buying music, in particular, I really don’t want to carry on handing over my money to the likes of Sony, EMI or BMG so that they can pass on a pitifully small amount in royalties to the artists and whose creative efforts I enjoy – not when I know perfectly well that the digital revolution makes it possible for me to deal with the artist directly. That new and much more direct relationship between artist and consumer, which some of the more far sighted artists have already begun to explore, is one that we should be looking to foster and encourage. The big media corporations have been gouging us all, musicians and consumers alike, for long enough and if the cannot or will not adapt to the challenges of the digital age then that’s their problem.

Providing greater clarity on, and support for, fair use/fair dealing, particularly on a non-commercial basis, is also a cause that the left certainly should be taking up with gusto.

Nothing is, I think, quite so emblematic of the degenerate, utterly grasping attitude of the corporate sector toward intellectual property than the news that the Associated Press is seeking to sue Shepard Fairey for copyright infringement because his iconic ‘Hope’ poster of Barack Obama was based on a photograph of Obama (which Fairey found using Google’s image search) to which AP own the commercial rights.

AP’s motives here are, of course, patently transparent. It’s not redress for a breach of license they’re aiming for here, nor are they likely to be seeking to force Fairey to withdraw the image, a hand finished stencil and acrylic version of which has been acquired by the Smithsonian Institute’s National Portrait Gallery, to protect the commercial value of what is, otherwise, a moderately interesting piece of stock photography. What they’re looking for, of course, is a ruling that would enable them to profit from the commercial exploitation of Fairey’s poster, for all that the artistic, cultural and commerical value of that image rests solely on the creativity applied by Fairey in transforming a mundane photograph into an iconic piece of modern pop art, one that is currently as famous, perhaps, as Andy Warhol’s oft-imitated Marilyn Diptych.

Specultative, rent-seeking, litigation of this kind has become, unfortunately, an all-too-common feature of contemporary copyright and patent law, providing the clearest possible signal that our existing laws are hopelessly out of touch with, and ill-suited to, the demands of the digital age.

So, to sum up, innovation, creativity, new and much more personal business models, fair use, fair rewards for artists and standing up for the ‘little guys’ (and girls, of course) are good and worth supporting, and talent-free rent-seeking corporate scumbags (and their lawyers) are bad and should be first against the wall (figuratively speaking) when the copyright revolution comes and we get around to reworking our copyright law in a manner fit for the digital age.

So, if you consider yourself to be of ‘the left’ then what’s not to like about any of that?

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About the author
'Unity' is a regular contributor to Liberal Conspiracy. He also blogs at Ministry of Truth.
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Reader comments


Interesting, the libertarian von Mises Institute has had several blogs regarding IP recently and are plugging this book: http://levine.sscnet.ucla.edu/general/intellectual/against.htm which puts forward a practical case against IP. A more philosophical view can be found here: http://mises.org/books/against.pdf. The view appears to be that IP in all its forms is not compatible with the free market. It isn’t just the left who are anti-copyright.

A broadband tax would make perfect sense if – and only if – the money went to the owners of copyright in works that were being shared or given away freely (if people are buying music off eMusic or somewhere then the artists are already getting paid) and if that money was shared according to how often the file was shared, whether the file was of my band’s last EP or Coldplay’s new album.

If that was instituted, along with a reduction in copyright terms (40 years or creator’s lifetime plus ten years, whichever is shorter, seems like a good absolute maximum to me) and an increased right to fair use for transformative works such as that poster (and maybe a strengthening of ‘moral rights’ so that just because, say, a Beatles record went out of copyright it wouldn’t be possible to use a recording of Paul McCartney’s voice to advertise steaks when he’s a vegetarian) I think that would actually have almost all the effects you’re after, and without getting into patent law at all.

(Trademark law probably needs some small amount of reform too, but far less than copyright).

Much to agree with here Unity, but I imagine many of your wishes could be delivered by markets in the complete absence of intellectual property.

For example, before recordings, composers and artists often relied on the patronage of a handful of rich individuals. Today, we could all become patrons of a sort. A musician could release a track or two from an album onto the internet, and promise to release the rest of the tracks when a group of listeners agree collectively to pay a certain sum. Using a similar arrangement to petitions like “I will not accept an ID card if 100,000 others refuse as well”, you could make offers like “I will contribute £1 to the musician, if 10,000 others do so too, in return for an album release”.

Of course, you would get “free riders” who will have every opportunity to listen to a whole album once it has gone wild, but as long as musicians were rewarded, I don’t think that would be a terrible outcome. In a more advanced market, good musicians would apply for payments from large patron organisations to which many individuals contributed and who had a say in which genres should be invested. I don’t imagine musicians would earn as much as the superstars do now (although, there would still be huge rewards available for live performances), but I don’t think that is in anyway problematic either. And this is just one model that might become more popular. I am sure there are other methods that are impossible to predict in advance.

Nick, one problem with that is that it is a reasonabe way to reward *performers*, but not songwriters. If I write and release a song and make little or nothing from it (as I do, unfortunately…) that’s fine. But then if some more popular musician (and most buskers are significantly more popular than me) were to record my song and make a great deal of money from it, I would be quite disappointed were I not to make any at all. Currently, if someone records a cover version of someone else’s song, the writer gets paid. How would your system account for paying the writers?

>Creativity brings with it certain financial rewards, which are obviously attractive, but it also enriches us all, socially and culturally.

How would you grapple with the reality of the creative sector as low paying. Many even reasonably successful artists depend on their partners or part time jobs to support them. That is one of the hard cases where little people may be hurt by copyright law changes.

My answer to the Obama photograph is that the real problem is that artist was an idiot (and thoroughly unprofessional) not to check properly in the first place. Even many neophyte bloggers don’t make that sort of howler – it was clearly a commercial project from the start.

I couldn’t predict in advance what system could emerge, but I would imagine a guild of especially talented musicians (or their representatives) might invest in a fund that supported writers who they knew to offer consistently good songs. Or it might operate more on the micro-level, with musicians and writers co-operating as individuals to produce a unique product.

Social opprobrium against stealing songs might play a role too. I have previously used the examples of jokes (they take a lot of work to write, but you can’t stop other people from using them). People tell them freely socially but if a professional stand-up comedian steals someone else’s material, then they can lose credibility and status. They might be punished economically by getting fewer gigs and people refusing to work with them.

“My answer to the Obama photograph is that the real problem is that artist was an idiot (and thoroughly unprofessional) not to check properly in the first place. Even many neophyte bloggers don’t make that sort of howler – it was clearly a commercial project from the start.”

But this is an ‘is’ vs ‘should’ question. Yes, given the law as it is, he was silly to not check. However, in a world where the law was sane, creating a derivative image based on a stock news photo, where all the artistic endeavour was in the derivative image and none in the source material, wouldn’t require checking and wouldn’t require handing over shedloads of cash to a bunch of greedy sods.

If all the artistic endeavour was in the derivative image then why wasn’t it created from scratch?

If the original photo was owned by an individual, and the derivative work was made by a marketing company, how would that effect your view?

As to the eeeevils of music companies – if artists have sold the rights to their music then they’ve made a bad deal. Nobody is holding a gun to their heads. Better education for artists might be an idea of course…

Unity, what’s this ‘digital age’ crap? Copyright has been suppressing creativity since it was brought in.

I agree with Andrew that writers and artists need to make a living, and some way of ensuring that composers make a living was the reason for initial copyright law, but the problem is when work gets stopped or suppressed because derivative work is prevented.

How much of Shakespeare was truly original, compared to thw amount he ripped off wholesale? It’s pretty clear that his derivative works were much better than the original, but the “golden age of English theatre” was only really possible because copyright law was essentially non existent.

But yeah, I agree–we need some form of copyright law, but the current version has never been good and is getting worse, not better.

I’m sorry, but if you’re going to propose a system to reward creativity, then you need to have a system in place to reward those who do the actual creative work, and trusting to the kindness of strangers is not really good enough.
And successful comedians *do* steal jokes on a regular basis – people like Joe Pasquale or Jim Davidson are well known for taking material from less financially-successful comedians and using it themselves. Loss of ‘status’ is not nearly as much of an incentive as loss of money.
Many people have no idea who wrote the songs the performers they admire are singing, so there’s no reason under your system for successful performers not to just take the songs created by others.
This appears to be a system that would encourage the successful to be parasites on the work of the unsuccessful.

I am not suggesting one system at all, I am just suggesting that we don’t create artificial property rights and then see what systems and conventions emerge in response. If a lack of good songs is holding back creative endeavour, then someone will work out a way of compensating songwriters so that they produce more. I have suggested a couple of directions it might take, but I am not an oracle.

And Jim Davidson is rightly held in contempt 🙂 I mean is there any level of monetary success that could actually compensate an individual for BEING Jim Davidson? Give the guy a break, he has to spend his every living moment with himself!

Nick, the point is we do *have* such a system – that’s what copyright law is. That the system has bad points as well as good is an argument for modifying the system, not getting rid of it altogether.

Mat – my point exactly. We need a system that allows far more leeway in creating derivative works, and far more freedom in non-profit distribution, but doesn’t do away with creators’ rights altogether…

13. Shatterface

My chief interest is in archive television, a subject I post widely on.

One of the biggest issues I have is the tortuous musical rights which mean that old shows which feature a great deal of then-contemporary music are effectively mutilated on DVD because music which originally appeared in the TV version is removed.

Shoestring is an extreme case: a TV detective show based in a radio station inevitably featured a great deal of pop music in the background: UK Gold and BBC3 can show repeats but it is unlikely the show will ever get a DVD release because of rights issues.

Adam Adamant Lives! is probably more representative of the swinging sixties than the glossier Avengers but the replacement of the Rolling Stones’s Route 66 with library music robs the first episode of any hippness and Manfred Man and The Beatles have been cut from Doctor Who.

In the case of The Beatles that was an 80’s-made Doctor Who story set in the 60’s and using the song on a dukebox in the background for purposes of verisimilitude: modern producers of more naturalistic programmes, mindful of eventual DVD release, will be discouraged from using representative music and will therefore fail in portraying recent history accurately.

Shatterface, did you follow any of the fuss re the necessary butchering of Life on Mars/Ashes to Ashes for both DVD release and overseas sales?

Friends in the US tell me the show was pretty crap without some of the key incidental stuff :-((

Shatterface – actually you’re wrong, that’s already been changed. There’s now a blanket licensing rule for music synch in the UK, which meant that, for example, when they reissued Remembrance Of The Daleks in 2007 they could put the original Beatles recordings back on.

Incidentally, in *that* case, it actually *reduced* verisimilitude as the main song in question (the one heard in the cafe rather than the one that you only hear a tiny snatch of), Do You Want To Know A Secret, was only an album track for the Beatles and so wouldn’t have been on jukeboxes, while the version that replaced it on the original DVD release, by Billy J Kramer & The Dakotas, was a number one hit and so would be exactly the kind of thing you would have heard…

(Of course, if they’d just done what they’d done a couple of years earlier on Revelation of The Daleks and used a bunch of cheaply-licensable soundalike records then they’d have never had a problem to start with 😉 ).

“Nick, the point is we do *have* such a system – that’s what copyright law is. That the system has bad points as well as good is an argument for modifying the system, not getting rid of it altogether.”

Ok, I mean systems and conventions that can exist independently from coercion.

Why is it ‘coercion’ for a worker to demand payment for her labour?

Copyright has good uses and bad. The debate might be seen as reflecting the power of individuals balanced with that of large corporate interests, rather than being a strictly left or right issue. Many on the libertarian right are skeptical about copyright ‘monopolies’ being extended too far.

There is one current example of this entrenching of monopoly which should make you sit up, which is the extension of sound recording copyright from 50 to 95 years under a EU Directive being debated now.

Take a look at our campaign website and cartoon here:

http://www.soundcopyright.eu/

Sign the petition and tell your MP why you think this is a bad idea.

It isn’t so long as the conditions of payment were agreed prior to the labour or exchange being done. If I cut the lawn of a communal park and use my creative powers to make it very beautiful such that anyone walking through it gains tremendous extra value from it, that still doesn’t means I can demand payment for it. That changes if I have got a group of locals to agree to make to pay for my efforts.

But if you make your *own* garden look nice, that doesn’t mean anyone who likes should be able to come into your garden and pick your flowers. The park already existed and belonged to the community. A song, or book, or painting or film doesn’t.

Well it is a slightly different case as the flowers are a scarce resource (when you pick them, you don’t leave the same number left) and you would have to trespass in order to gain access to them. Similarly, if you keep the composition to yourself, then obviously no one has a right to come in and steal it. But once it has been committed to a digital medium and displayed or played publicly, it becomes essentially a limitless resource.

But I see where you are coming from. It is by no means an easy principle to establish.

22. Shatterface

Andrew, thanks for the update regarding copywrite.

I’d disagree with you on comment 18 though: if I take a flower from your garden you have one less flower. That’s not the same with music: property rights were developed for commodities which were ‘consumable’ in the sense they could be used up: even stately homes and works of art can deteriorate.

I’m all for people getting paid for their work but there’s no reason they or their decendants should continue to be payed decades later.

Shatterface, many artistic works take a very large amount of time (and indeed money) to create and have a fairly limited audience. It may be, seriously, that for many creative works it *takes* decades for the creator to earn a reasonable hourly wage for the work they put in in the first place, which is why I suggested forty years (which is much less than the current limit).
Note also that I’m talking about *commercial* exploitation there – I think laws should be far less strict about non-commercial sharing. But if a creative work has some financial value then it’s only right that the person who created it should get some of that money – because *someone* is going to (that’s what financial value means…)
For those of you who are more market-oriented, think of it as buying shares – except that the writer or musician or whatever is investing time rather than money. Very few people say “Just because he put that money in the bank, why should he keep earning interest on it?” even though that is just as justifiable as the argument that writers shouldn’t keep earning money from their work years later.

And Richard, it’s generally not ‘the left’ at all who want to get rid of copyright – most people I know on the left tend to take the view of Unity or Mat or myself, wanting the laws to be reformed rather than got rid of (with a few obvious exceptions). Libertarians on the other hand *love* the idea of getting rid of copyright, because it allows the rich to exploit the poor without any consequences.

Andrew:

If all the artistic endeavour was in the derivative image then why wasn’t it created from scratch?

You could ask the same question of the Marilyn Diptych, which used a publicity shot of Monroe taken for the film ‘Niagra’, but I don’t recall the film’s producers trying to sue Warhol, even though segments of that artwork have been widely used posters and other commercial products.

If the original photo was owned by an individual, and the derivative work was made by a marketing company, how would that effect your view?

It wouldn’t provided that the artistic input of the marketing company was sufficient to warrant considering the derivative image to be an original work.

My view here is that if this does go all the way to court then AP will lose the case because all the commercial value and artistic merit of poster rests in the work of the artist, not in the photograph. AP’s gambit here is to try to use its resources and legal muscle into pushing the artist into agreeing some kind of co-licensing deal giving them exploitable commercial rights to the poster.

As to the eeeevils of music companies – if artists have sold the rights to their music then they’ve made a bad deal. Nobody is holding a gun to their heads. Better education for artists might be an idea of course…

You’ve obviously never come across the term ‘hydraulic despotism’ have you?

The music industry’s ability to exploit artists stemmed, in the main, from its near total control of the production/distribution chain which made it extremely difficult for artists to make kind of headway without taking up a deal with one of major labels.

Yes, there were some independent labels that did quite for a time, pre-digital, not least of which was Stiff Records, but even they got screwed over on more than one occasion by the big players. One of the more common tricks used to keep the indies down was that of buying up as much of the production/distribution capacity as possible if a band signed to an indie label was getting a lot of radio airplay and looked likely to shift a lot of product, ensuring that, at the point of release, there would an insufficient supply of records/CDs to enable the band to make a significant dent on the charts.

The attitude of the major labels to the indies was always that of allowing them to be successful enough to identify artists that were likely to be a major success but keep them on a leash tight enough to ensure that such artists would have no choice but to sign with a major in order to make the real breakthrough they were looking for.

You could easily be the best educated musician in the world, but if you can’t distribute your work you can still end up with a lousy, exploitative deal because the major labels have left your without any kind of alternatives.

Andrew – I think that is a rather unfair characterisation. The current system of intellectual property creates some marked inequalities. It creates some super-rich individuals who often don’t seem to have contributed all that much of their ‘creativity’ to the work (their success certainly isn’t proportional to it). It also enriches a coterie of middle class positions (the networkers inside the music/film industry, intellectual property lawyers etc.), and yet it is everyone else that has to pay for the output and have, until recently, paid a tremendous amount of their disposable income towards it.

Now I am sure you are as concerned as I am about these things, and you want to create a system that tackles those inequalities. All I am saying is that the systems that would be the least defective might well be the ones that people develop spontaneously without legal restrictions. I am arguing against the “intelligent design” of the creative market place, and proposing that what might evolve naturally might work out better in the long run, both for artists and consumers.

Nick, those problems aren’t created by copyright law, but by control by a very small number of companies over the means of production, promotion and distribution of creative works. A lot of those problems go away by themselves with greater access to technology, others would happen in *any* capitalist system. Only a relatively small number of the problems come from current copyright law, and that is best dealt with by fixing the law.

Current laws *have* been developed ‘spontaneously’ – by people voting for politicians who put them in place. The argument you’re using could be used for every single industrial regulation (and that’s what, ultimately, copyright is) and indeed for every single law of any kind.

The way to reduce injustice is *not* to take away protections from those at the bottom, but to change the laws to stop abuses by those at the top.

“those problems aren’t created by copyright law, but by control by a very small number of companies over the means of production, promotion and distribution of creative works.” – and I think copyright law is one of their main tools in this regard, and the fact that it has been voted on in an assembly doesn’t mean that it hasn’t been designed or amended with particular interests in mind.

Nick, this is a very weird analogy:

It isn’t so long as the conditions of payment were agreed prior to the labour or exchange being done. If I cut the lawn of a communal park and use my creative powers to make it very beautiful such that anyone walking through it gains tremendous extra value from it, that still doesn’t means I can demand payment for it. That changes if I have got a group of locals to agree to make to pay for my efforts.

If you redo the park, that’s your creative work, on someone else’s land (or the communities land). The landholder chooses entry requirements. If you do it on your land, you can chose to charge or not.

But if you perform a peice of music in public, you can choose to perform your own composition, or someone else’s. If you choose to play someone else’s music, and benefit from it, then you, under the current arrangements, owe the creator money.

I hated that Bryan Adams was at #1 for ages with that Reg Presley song, but I liked that Reg got to buy himself a new house out of the royalties he was due. I didn’t like that a bunch of middle men also took a cut.

The current system is over the top and restrictive, but for performers, it’s not coercive—they chose what music they perform and whether they want to pay licensing rights for it. It should and could be a lot less restrictive, but it’s absolutely right that composers get paid for someone else’s success with their work.

I’m less keen on things like Quentin Tarantino getting money because the FLC’s sampled some of his dialogue in Scooby Snacks.

Let me use this medium as an example. The Internet is pretty close to being an entirely spontaneous development, it basically being an accidental creation of some academic and military institutes. It has grown through piecemeal additions from governments, private companies and volunteers with no one maintaining overall control apart from a few institutions that by their authoritative status have developed shared protocols. The results, at least as I interpret it, is that the internet works incredibly well for content providers, businesses, users and everyone else alike. Of course, now the government is taking more of an interest as a regulator (rather than a mere participant), that might be set to change. But the principle, I think, is sound. This thing could only have emerged to everyone’s benefit with no-one in particular retaining overall control.

And no-one in particular retains overall control of copyright. Anyone who creates a piece of creative work retains control of their own work unless they willingly give it up, and decides how it’s used. Your ‘analogies’ simply have no bearing on the situation at all.

Put it this way, at Christmas this year the number one and number two singles were both versions of Leonard Cohen’s song Hallelujah. Neither were sung by Leonard Cohen. Both were released by Sony.

Now, if there were no copyright laws, which of these situations seems most likely?

1) Sony just decide to give Leonard Cohen the money anyway, because they’re nice.
2) All the people who bought those tracks, many of whom don’t have a clue who wrote the song (or believe Jeff Buckley or whoever the nonentity who got to number one was wrote it) and a surprisingly large number of whom don’t actually understand the distinction between ‘song’ and ‘recording’ decide to give Leonard Cohen some money.
3) Sony get more money and Leonard Cohen gets none.

Getting rid of copyright wouldn’t have stopped Sony from making money from those recordings – they’d just have to sell the files with terms & conditions equivalent to (or worse than) current copyright law (which happens when ‘buying’ through sites like iTunes anyway) and with restrictive DRM on them to have exactly the same effect as copyright law. The only difference is , they’d be under no obligation to anyone else.

Andrew:

It’s not clear what Cohen got paid or even if he did get paid because Simon Cowell owns the rights to ‘Hallelujah’.

Andrew, you are not thinking dynamically about this. Sony couldn’t really make any money from selling a recorded single if there were no copyright law. In fact, I can barely conceive of them having any role in the dissemination of the song at all, because a copied CD / MP3 would be as legal to sell or exchange as whatever Sony put out. So it would really be the performance that people would be paying for, besides some expert technicians. And as I said, that would have to handled by some entity other than a copyright owner, like a patronage association (that may have a rule on the cut to be given to the original composer, for example).

Unity, I did think that, but John B said otherwise when we discussed this last year, and I never did get confirmation one way or t’other who owned which rights.

Unity – not the case. ‘Simon Cowell’ doesn’t ‘own the rights’. Rather Sony, the company for which Cowell works, owns Stranger Music, Cohen’s publishing company (which they were fraudulently sold by Cohen’s manager without Cohen’s knowledge or approval).

I don’t know the precise details of Cohen’s deal with Stranger, but it is usual for a publishing deal to be a 50/50 split – the publisher gets assigned the copyright to the songs for a period (usually 25 years with an option to renew) and gets 50% of the songwriting royalties in return for administration. However, I believe his manager may have also negotiated a deal with Sony to take a lump sum over future royalties, back in 2001 (a reasonable deal for a man in his 70s – take the money now rather than wait). There seems to be some dispute over that though – a story in the Times last year suggested Cohen would make £1,000,000 from songwriting royalties from the song.

Cohen is actually owed $9million by his ex-manager, who’s gone into hiding after stealing the money from those deals. Either way, he’s either earning a substantial royalty from the song (and his other songs) *now*, or he was paid a substantial amount (in the millions) earlier for the right to do what they like with the song, so he definitely got paid. The problem for him is that so much of the money he was paid was embezzled, but that of course isn’t so much an argument against copyright law as against embezzlement (or against going off to become a monk and leaving someone else in charge of your financial affairs…)

Nick, if the only way to obtain the original recording is to enter into a contractual agreement not to distribute it further, then that has *exactly the same force* as copyright law. It certainly wouldn’t be legal to sell a copied CD, because you would have broken the contract you entered into when obtaining the recording in the first place. There are already terms and conditions like that for almost any legal download. For example, I subscribe to eMusic, which has some of the least restrictive T&Cs of any of these sites, and that includes the clause:

“5.2 By enrolling in the Service, you acknowledge and agree that you have no right to provide any files obtained through the Service to any other party or through any other means. You may only make copies of any file obtained through the Service for your own personal use.”

By agreeing to that, *IRRESPECTIVE OF COPYRIGHT LAW* I have entered into a contractual agreement not to copy their music for anyone else. It would be illegal for me to burn a CD of any files I downloaded from them, no matter who owns the copyright. (In fact, looking at that, it would be illegal for me to burn copies of the songs by my own band from the files which I downloaded from there to check that they were decent quality…)

Unless you want to get rid of contract law, but that usually seems to be the one bit of the law that Libertarians seem very keen to keep, for some reason…

@36 Andrew Hickey: if the only way to obtain the original recording is to enter into a contractual agreement not to distribute it further, then that has *exactly the same force* as copyright law

I think this is factually inaccurate. Consider the case where I come across some data that’s been lost — fior example a memorey stick I find in the street. The data has no indication on it saying who it belongs to, so I can’t return it do the owner. It does however contain some MP3s with music on them. I didn’t enter into a contract, therefore in the absence of copyright law, I am under no legal obligation not to redistributre them.

37. Shatterface

I’m told that the performers in the ITC adventure series of the 60’s & 70’s were hired under fil contract law so that they received three times the usual rate for their initial performance but nothing thereafter making it easier to sell the shows abroad: Patrick McGoohan continued to make more money as writer and producer of The Prisoner rather than actor. Needless to say, Lew Grade made a lot of money.

And lets not turn this into another thread telling libertarians what they believe: it’s clear neither Left nor Right hold the copyrite on this issue. I’m more of the ‘all property is theft’ frame of mind, particularly where intellectual property is concerned.

If you bind people into a contract, then that is fine (although I don’t think you would see many people signing up to a contract like that, which was demonstrably enforceable as the enforcement would justify just about every infringement of privacy you could imagine). But an awful lot of music is heard without listeners entering into a contract, like over the radio or in public, or as bystanders. Unless you are going to license the use of recording devices and copying equipment, and make every music license owner liable for a copy being overheard, then you will see music unattached to contracts ‘going wild’ again. As a consequence, I think it is just a bit silly to try to force this particular product into that sort of property right.

Cablamat offers another good example.

Nick, literally millions of people – in fact everyone who has ever downloaded anything from one of the major legal music download sites – have entered into agreements of precisely that nature. And while they’re unenforceable when dealing with individuals sharing on a non-commercial basis, so is copyright law. Where both are enforceable is when it comes to large-scale commercial operations, which is also what matters. My mate Trevor has done cover versions of some of my songs at open mic nights, and I’ve never sued him for royalties. On the other hand, were Coldplay to do a cover version of one of my songs on their next album and not pay me, I would be severely peeved.
As for recordings off the radio, etc, that *happens anyway*, as does private filesharing. I don’t think that’s in any way a bad thing. But people still pay for music now, and they would in a world with no copyright laws (for convenience, because they don’t know where else to get it, because the X-Factor tells them ‘buy the new single from iTunes now!’, because they prefer physical media and so buy from big chain stores which are usually connected to the big media companies). The difference is that now, the people they are buying from have some legal obligation to give some of that money to the creators. In your system, they wouldn’t.
There is a difference between burning a CD for your mates and selling five million CDs for fifteen quid each in Tesco or HMV, and different laws should apply to each. Copyright was designed as an industrial regulation, at a time when the means of copying protected works were in the hands of a very small number of people. Now the means to copy is available to most people in most Western countries, the law which was designed to protect creators from that small number of people is causing problems for the majority, and should be changed accordingly. But that does *not* mean that the original problem (of people creating something and other people making money off their work without paying them) will magically go away.

@2 Andrew Hickey: A broadband tax would make perfect sense if – and only if – the money went to the owners of copyright in works that were being shared or given away freely and if that money was shared according to how often the file was shared, whether the file was of my band’s last EP or Coldplay’s new album.

The problem with that idea as stated is that people would game the system. For example, I could create a piece of music (or other work) and set up a computer (or better still a botnet) to download multiple copies of it. Or, instead of writing a book as one document, I could realease each chapter as a separater individual document and if there are 10 chapeters, get ten times the number of downloads. (If, to counteract this, the size of the downloaded file is what counts, I’ll simply switch to a format that uses bigger files).

So what we need is a system that rewards creators roughly in accordance with the amount of pleasure (or other utility) that their works give to society. I say “roughly” because doing it exactly is clearly going to be impossible to achieve, and is in any case not necessary in order to encourage future creative works to be produced.

And that’s what my broadband tax proposal aims to do.

BTW can people get my handle right. It’s Cabalamat not Cablamat.

Sorry, dude.

Ben Goldacre has been forced to remove an audioclip from his excellent Bad Science site on the grounds that it breaches copyright: the clip was part of a hysterical radio broadcast on the subject of MMR vaccination.

Surely even the most rabid supporters of intellectual property rights must find this an unacceptable act of politically motivated censorship?

Its hardly the first time copyright laws have been used to stifle comment, debate or parody even though they are supposed to be protected.

Thanks Unity, for posting on this. My intutions are basicaly the same but I’m still not sure what that means a system would look like. I’d also add what others have touched on – that a system has to reflect the user’s perception of value as well as rewarding the creative source

So an MP3 may have literally no value, because it’s a limitless resource. That means it should be free for private consumption, but no-one should be able to derive profit from it without rewarding the author, because any situation in which something is being used to make profit renders it a scarce resource.

I do wonder if there’s scope to make copyright laws dependent on a profit motive. If people wanted to use a musical idea in their own music/film/project, they’d have to contact the writer to arrange a private contract. In most cases the writer would be willing to give it for free – you could stipulate that if a profit above a certain amount is made, the writer is automatically entitled to a share of the profits. You’d have to stipulate that ideas belonged to their authors and could only be licensed out, not sold, so that record companies wouldn’t decide their only way of making money would be to buy songs & charge people for doing covers. This would be a pretty big change, but we need big changes. After the author’s death copyright would not apply.

If record companies want to stay in business, I think they should evolve into tour promoters, merchandise sellers etc – focussing on providing services that musicians can pay for rather than contracting musicians themselves. That way they are adding value rather than creaming profit; acting as productive forces rather than leeching on creators.

@46 Tim F: So an MP3 may have literally no value

There are two different types of value, use value and sale value. Ubuntu has little sale value, since it’d be hard to make a lot of money selling copies of it, but it has enormous use value, because millions of people find it very useful. So talking about “value” on its own without saying what sort of value you mean is mesleading (and may be a symptom of not understanding the issues fully.)

any situation in which something is being used to make profit renders it a scarce resource

That’s not true. Counterexample: if I take an out-of-copyright book, transcribe it and put it on a website, and I have google ads on the website, then I’m making money out of it, but I’m also decreasing its scarcity.

If record companies want to stay in business, I think they should evolve into tour promoters, merchandise sellers etc

I agree, and that’s the way the industry is in fact going.

What I meant by “value” was not either sale or use value, but the user’s perception of value – not a scientific definition by any means. I think most users tend to have a concept of intrinsic value where physical objects (books, CDs, more so vinyl) have more value than electronic files.

Re your counterexample – good point. I think what I said only works with resources that weren’t scarce in the first place.

I’m quite on the AP’s side here — and bringing Warhol up is dodgy, because it show a misunderstanding of Warhol’s art. Warhol was using the image of Marilyn to make a comment on the image of Marilyn; Fairey is using the image of Obama to make a comment on Obama.

Now, I am not a copyright lawyer, and nor yet am I an art historian, but it seems to me there’s a difference between the two that corresponds to the right to reproduce to criticise or review.

Lichtenstein did things that were clearly out-of-bounds on any reading of copyright law that is at all useable, (unless you allow the comment dodge) and he mainly got away with them because of the double standard of fine and applied art. Fairey is, unfortunately, finding that when you have a clothing line and consult for Nike or whatever you are not a fine artist any more.

Also, Fairey has form on theft and plagiarism.

@48 tim f: What I meant by “value” was not either sale or use value, but the user’s perception of value – not a scientific definition by any means. I think most users tend to have a concept of intrinsic value where physical objects (books, CDs, more so vinyl) have more value than electronic files.

For music, I prefer a file on my HD to a CD, because CDs take up room and files don’t. So to me, a CD has less value.

Yes, but you’re weird!

Actually I prefer files too, but I still think they have less value. For one, they’re much more easily replaceable. If I accidentally delete or damage them I can just get another one.


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  1. Jeni Barnett - Pig Ignorant and Proud | Ministry of Truth

    […] I’ve commented on the Associated Press’s attempt to sue artist Shephard Fairey for basis his now famous ‘HOPE’ poster on a photograph for which AP hold the distribution right over at Lib Con. […]

  2. justrootspr

    @soulpowr Here’s link that explains in part where this money went. It’s disturbing knowing as taxpayers we will pay it http://tiny.cc/gLhhn

  3. justrootspr

    @soulpowr Here’s link that explains in part where this money went. It’s disturbing knowing as taxpayers we will pay it http://tiny.cc/gLhhn

  4. Michelle

    @justrootspr the link I got was http://bit.ly/nVP12 informative but wasn’t about TARP money.





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