Conference Calls

For those in Melbourne next week I am presenting a paper at the International Association of the Study of Popular Music (Au/NZ branch). My paper ties together our relationship with political music, changes in society and how this reduces the operative time of the songs and how the copyright term of seventy years plus the life of the author ridicules these songs and prevents their reuse or second life. I focus on the band - The Herd and am therefore presenting in the Hip Hop section. If you are interested in attending the conference it is being held in the city and you can get more information about it here. I am having a little bit of a holiday while I am in Melbourne so this space will probably be quiet for the next week or so - I may mobile blog but it depends on whether I have enough time.

IN OTHER NEWS... Berklee College of Music in association with the Berkman Centre at Harvard, have announced a conference to be held next April (Rethink Music) and have issued a call for papers. There is also a $50,000 prize for those that enter the 'new business model' competition. You can find our more about it here and here.

McGuinness on the Music Industry

This months Australian Rolling Stone Magazine (issue 708 November 2010) has an article from U2 Manager Paul McGuinness titled 'MANIFESTO: How to Save the Music Business'. He writes that free is killing the music industry with it being much harder than ever to get a record deal from a major label. He states that ISPs have made a heap of money out of piracy, that artists find it very difficult to speak out about file sharing with those that have attracting wide condemnation (Lilly Allen style). McGuinness suggests that the newspaper and film industries are also at risk and that something must be done to stop illegal sharing. His vision of the future is one of streaming services and he applauds the New Zealand and French Governments for the introduction of their graduated response schemes. Furthermore he states that the clever people like Steve Jobs and the makers of Facebook need to do more to create an environment in which the music industry can again prosper.

I found this to be interesting to read even if I disagreed with most of it - I have already spelled out my views in the last couple of posts so read on if you would like a recap on that. The one thing I do agree with is the difficult position artists find themselves in, they cant really speak out about file sharing without being accused of being 'uncool'. The Allen backlash is just one example of this, and so instead they say nothing. While much of sharing music is about exploration and in many cases this leads to financial reward or does not displace a sale because without sharing the consumer would not have bought it anyway, there are some that share without ever buying. The trouble for many major label artists is that they are caught in the cross fire - they cant risk their own careers by supporting file sharing even if they think it is good nor can they risk losing fans by condemning it. But is saying nothing really working?

Graphic Detail

Here's a graphic from a paper I presented a few years ago - as I wrote then, corporations are 'legally enabled, immoral, unaccountable greed driven "people" who are financially and therefore politically, more powerful than a national public government.'

'The impact of private governance in this context can be seen as a self perpetuating cycle.

Within wider society, liberalist capitalist corporations as enabled by the corporations law, use their economic power and public choice theory to get stronger copyright laws to strengthen their position. They influence their immediate public govenments to have their interests voiced in international forums and promoted through instruments such as bilateral trade agreements to further their control on a global scale.

Within the digital music environment this results in control over the production and distribution of music. Driven by a profit motive this in turn typically displaces politically educational music in preference for music more likely to be accepted and purchased by a wider sector of society. An associated impact is also evident with respect to the progress and development of new technology.

This therefore impacts on the receptive mediation of music by members of the public both in terms of their access to works and the diversity of messages that are available to them. This leads to a reduction in political and social awareness helping to perpetuate the cycle of corporate dictatorship.'

So ...Why Not?

Following on from my post yesterday about a proposed license scheme for file sharing I thought today I would try to answer the obvious question which is, why hasn't something like this been done yet?

The short answer is that it can't be done yet. Why? Because the four major record labels are not people - they are corporations. Corporations whilst enjoying the rights of people actually lack moral capacity (find and read Aidan Ricketts LLM thesis & the book 'When Corporations Rule the World by Korten). The Corporations Law requires that directors make decisions in the interests of the corporation (the business judgment rule) and from that comes considerations about profits - by law they can only do something if it will ensure more money to the corporation. Until we reach what I call the 'tipping point' that is the point where is it financially more viable to agree to a licensing regime there simply can't be one on a voluntary basis.

Furthermore compulsory licenses are hard to implement too - International Agreements raise the prospect of trade sanctions against Governments that do not act to protect intellectual property rights. While the big four still lobby for strong protections there are slim possibilities that Governments can enact legislation.

There's a lot more about this yet to go into my thesis but essentially it comes back to the fact that corporations are not people - they can't think of anyone but themselves and by law the directors are stuck even if they can see the benefits of these types of proposals. SO wait for the tipping point or make a strong case to the Government (unlikely in the USA due to campaign donations/public choice theory).

Without meaning to induce anything I would like to finish by saying - perhaps the more people file share now the sooner we will get some common sense back into the music industry....

So what could be better than this?

For my thesis I have been re reading three proposals for an alternative to litigation with respect to illegal file sharing. The three models I have been reading about come from Terry Fisher in his text ‘Promises to Keep’, Neil Netanel’s Non Commercial Use Levy and the EFF’s White Paper in this area. While each of these have the potential to realign the digital environment to allow for compensation to artists at the same time as the free sharing of music, each appear to me to have short comings that would result in a difficult implementation.

What I wanted to write about today is what I consider to be the best alternative and in some respects this comes from a mashup of ideas that these three offer. I propose a Compulsory/Voluntary License for music only, with changes to intellectual property law to allow for 3 second or less samples of music.

The Compulsory/Voluntary License I propose to allow for file sharing would see copyright holders being forced to release their works to the public while allowing freedom of choice for consumers. For a small flat monthly fee payable by file sharers they would be offered immunity from litigation for the sharing of music for non commercial purposes. This would ensure that all music is available to listeners at the same time as recouping a significant amount of funds for artists. Digital tracking and/or population sampling would be used to ensure that the funds are distributed to copyright holders based on popularity. Applying to non commercial uses only copyright holders would remain free to negotiate prices for other uses particularly those that relate to the mass media. I propose that the funds be divided up based on popularity however a threshold of downloads would need to be achieved to receive payment. I suggest that a model be introduced that ensure that a greater number of artists receive payment for their music but also that a sector of society remain amateur. Economic modelling would ensure that the funds are divided up in a way that would mimic the market place and as such it would not be possible to remunerate artists for every single download but rather ensure a professional sector of creators receive some concentration of funds.

Furthermore I propose that copyright law be altered to allow for a 3 second sample in either non commercial or commercial works. As a person with a background in law (not music) I am painfully aware of the expense and time that artists must spend accounting for samples they seek to use in new songs. I believe a blanket 3 second rule would alleviate much of the confusion that arises with respect to sampling. A 3 second rule would enable short riffs to be used and could be looped or repeated at will without incurring the need to negotiate licenses. This would provide enormous clarity to what is right now a difficult area of the law. Follow-on creators would have the certainty they need to ensure that their compositions would not attract litigation at the same time as protecting the integrity of the original composition.

These are two of the ideas that are central to the 5th chapter of my thesis and to me appear to be the best way of achieving a balance in the current debate.

Free Muse

I came across an interesting website today via a facebook link - it is called Free Muse. This is an international non-profit group dedicated to censorship in music. The site states:

"Imagine the world without music. Or imagine a world where we are told what to play, what to sing and even what we may listen to in the privacy of our own homes. That world already exists. In more countries that you might imagine, musicians and composers are under threat. And that threat is growing."

Based in Denmark, the organisation seeks to note instances of threats against musicians, to ensure there is public debate about freedom of expression and to act as a lobbying group for those that experience pressure from governments and other sources in the process of composing, recording and playing music live. Musicians have been tortured, exiled, jailed and even killed for their songs.

Take a look - it is available here.