Two themes and a reprise, part 2

Here’s a short coda.

I wrote previously about independent labels as a growing source of successful new music and the Majors as a declining developer of in-house talent, possibly leading to a stronger licensing role for the latter, Adele being just one example.

Although this seems advantageous for all parties there are legacy problems to deal with. I mentioned the eye-watering pay cheques of Major label managers and their yearning for big margin in-house successes.

There is also the changing role of online retail. While the Majors still have a strong territorial role distributing physical recordings they will be much less important in future as sales move onto the web.

Then there’s online entertainment. Today, the Majors are significant gatekeepers to traditional broadcasting and offer a useful service for licensed material (such as Adele) but that role will be diluted by the growth of new channels.

So, as time goes by independent labels won’t need to license their big successes to Major labels quite as much.

Finally there’s the whole question of the master license. Major labels own the master licenses for all their artists but they aren’t necessarily the best agent to work every aspect of a master these days. And there is a real question about value-for-money when they take half or more of the master income for transactions in which their ownership seems incidental. For example, say Rihanna has an album with Mercury who provide access to distribution and broadcasting, should they also take a big chunk if one of the tracks is used over the credits on a film? Your attitude probably depends on how you see the artist—as someone working for a label or someone with a label working for them.

Today, when anyone can make a sound or video recording, ownership of the master is a very blunt tool for simply getting the product to market or the media. I would argue this is another reason why closer partnerships between artists and independent labels are better all round.

The Majors would probably argue it’s only by owning all their artists’ masters that they can negotiate strongly with new licensees such as Spotify. But who benefits when such deals are struck? Do the Majors look after their artists’ interests or their own?

There are similar questions hanging over 360° recording contracts. The Majors certainly offer a number of very strong services to their artists but they are by no means the strongest in every sector.

From my perspective this makes the licensing solution sound even more attractive. An independent label seems far better able to tailor a number of licenses with different service suppliers rather than lumping the whole thing with a Major. But obviously not everyone will see it the same way.

Creative Commons isn’t magic

creative commons

This is a response to a Wired Opinion article by Ryan Singel Dear Facebook: Without the Commons, We Lose the Sharing Web.

Creative Commons isn’t the only way for a layman to license and it’s not particularly flexible. A longish and interesting Twitter conversation with Ryan was inconclusive so here, without the 140 character limit, is what I think and why, and some background.

First, I should say I’m not pro- or anti-Creative Commons, I just don’t see a use for it. For readers who don’t know, this is where I stand, broadly, on copyright. I speak informally for artists and fans (nobody else) and I favour enlightened copyright protection for music and so-called “file-sharing”. I grew up in an age of free music radio and liberal sharing of recordings. I oppose copyright maximalists, anti-copyright lobbyists, Big Content legislation, Big Technology legislation, the DMCA system, DRM and its lovechild subscription streaming, and many other things.

I exploit copyright in this blog and on my web site. I allow public educators, students and certain others to copy and reproduce my work freely—some (normally web businesses who don’t ask) are made to take it down, and that has happened. I do this without Creative Commons or legal professionals. Copyright as it stands is flexible enough. It gives creators a default set of rights but how they enforce them is their choice.

If we imagine copyright as a volume control which comes set at 10, the rights holder can choose their own level anywhere from 10 to zero. On the other hand a CC license comes set at, say, 5 or 3 and is less easy to change.

CC is not an alternative to copyright and it is not anti-copyright, although many people think it is. Creators (authors, writers, composers, performers, etc.) who oppose copyright should simply make their work public domain. Creative Commons is not for them. CC is a set of boilerplate copyright licenses (no different in principle to other blanket copyright licenses) and it does only one thing the rights holder in the street cannot do—it provides legal wording for certain fixed licensing circumstances.

For creators like me, the cottage industry if you like, legalese is something of a shrug. I can read licenses and contracts, and I have successfully advised artists against record labels, but I don’t use any technical wording myself. I have never needed it. Independent artists I know online exploit their copyrights the same way (including sharing) without legalese and without Creative Commons.

Plain English is easy and copyright law is not hard to understand. My “licenses” say: you can use it; you can’t put it on your web site; you must credit the source; and so on. We know nobody ever reads their iTunes terms and conditions, are they more likely to read a CC license? Musicians can and do say: buy one share one; pay what you like; share freely; you can remix it; please give me credit; etc. I can hear the blood draining from lawyers’ wallets as I say that, but hey, it works.

Ryan says:

By creating legal frameworks for licensing content in more flexible ways than traditional copyright laws, Creative Commons became a core part of the original Web 2.0 movement.

Sharing, re-mixing and permission to do it predates Creative Commons. I can see no aspect of CC that is equal to the flexibility and effectiveness of plain language and the imagination of creators.

Of course, from a user’s perspective, rights that curtail free exploitation might be inconvenient.

On Ryan’s broader point, I care less about Facebook and its dwindling relevance to music than about Creative Commons so I happily leave that question to others. But it seems to me anyone publishing content by submitting it to the permanent flux of social network site T&Cs could perhaps seek a simpler solution.

One more thing…

…about copyright and licenses.

Or rather, two. Reading back over the past couple of blogs and comments, and seeing some new stuff on Twitter has triggered a couple of postscripts.

1. What the copyright abolitionists want

I can’t speak for them but it appears they want availability and access, and they blame copyright for getting in the way. As I have said, it’s not copyright that gets in the way it’s licenses.

In fact, what the abolitionists want is happening. But it’s not happening in Big Content. The entertainment and arts media is splitting into two layers: independent, cottage industry artists (such as DIY music) on one hand and Big Content on the other.

Media stories discuss Big Content as though it’s the whole story. It isn’t.

So, somewhat ironically, at the same time as the web copyright abolitionists start laying into copyright owners for their anti-social licensing behaviour most new artists are using copyright in a completely different way. One that features availability and access.

2. A timely example of that media bias

On Friday Billboard.biz ran this story Copyright Alert System Coming Within Weeks. But it most definitely is not a copyright alert system. There can never be such a thing.

I have hundreds of copyright works and some of them are indeed online but nobody will ever get an alert about listening to or sharing my music files.

The CCI CAS system is wrongly named. It is in fact a Licensing Alert System. The fact that CAS is sponsored by a narrow group of content interests (CCI includes the RIAA but not me or thousands of other independent artists) tells us they don’t represent copyright. What they represent is their own licenses.

Imagine there’s no copyright

I’ve been a musician and composer for nearly 50 years and always been aware of, and in favour of, copyright. It means I can decide how my music and lyrics are used. Since 1995, given the ease of copying material online, there has been a new debate about the nature, purpose and flaws of the copyright system. I follow this debate closely and study a lot of UK and USA legislation.

In the past couple of weeks (when I got involved in this particular conversation) I’ve been thinking about a world without copyright. Those involved in the discussion range from artists wondering how best to use the Internet, to free-culture fundamentalists who demand you agree with them before they even talk about their reasoning.

Fundamentalists are confused between copyrights and licenses. Copyright is set down in national law and different in each country. Licenses—such as Creative Commons, soundtrack sync, a blanket performance license, or a record label territorial sales deal—are individual permissions based on the national law.

Abolitionists protest, often quite rightly, about the behaviour of Big Content interests (movie studios, Major record labels and publishers) and blame copyright. If a Major label rips off their artists or customers that isn’t the fault of copyright. If you’re unhappy about Apple’s commission on iTunes sales that isn’t the fault of copyright either. Copyright simply gives the artist the choice, it has no control over what happens after the choice is made; after the record deal is signed or the tracks are submitted to an aggregator.

We covered most of the points in comments on the previous post but here’s one angle that’s worth bringing together.

Copyright abolitionists imagine that without copyright, artists would still be able to earn a living from their art while wider society enjoyed their work for free. That alone is quite a tricky argument to sustain but it doesn’t end there, they also imagine middlemen would be abolished. Let’s examine those 3 ideas:

Without copyright, artists would be able to earn from their art

If everything was public domain, everything an artist made could be copied. A great T shirt design could be sold in supermarkets. A box set of their music with special artwork and booklets could be re-manufactured in Asia. It is sometimes thought this would just be great publicity for the artist, but it’s hard to see how unrestricted copying doesn’t take food off her table. And would the middlemen pay her a cent? Why would they? Culture is free!

(Incidentally, I’m in favour of unrestricted music file-sharing but I draw the line at commercial third parties copying unique art without compensating the artist, unless that’s what the artist wants.)

Society should have free access to all artists’ work

Copyright doesn’t stop that happening—enlightened artists do share and it does help them.

Without copyright there can be no middlemen

Unfortunately you can’t abolish middlemen by abolishing copyright, unless you also ban the sale of goods and aggregation of content. There will always be shops and superstores. They will always need goods. A free supply of art and design ideas would be welcomed by big retailers. Many Internet sites make their living by aggregation (Google, YouTube, Grooveshark, and many others including the lyric sites Drew Stephenson mentions). Just consider all the places that copy your stuff now, then add the other commercial locations prevented by current law.

Abolitionists seem to think a level playing field would allow buyers to seek out the original artist rather than using a middleman but they wouldn’t. People pay a big mark-up for aggregation in a superstore and inevitably choose Internet aggregators over individual artist sites. That’s what they do now—the absence of copyright wouldn’t change that, it would just make art cheaper for the middlemen.

If you have a solution to these problems I’d be pleased to hear it, but copyright is designed to protect the artist in a world of commerce and unless you can change the world it seems we are stuck with it.

Copyright is not really complex for individual artists. If you want to do business in your own way it should be easy to describe it to customers. “Pay what you like.” “Buy one share one.” “Pay what you like, or nothing.” “Virtual tip jar.” “Free music, buy a T shirt.” The possibilities are as broad as your imagination, just browse some artist sites or Bandcamp. Lawyers will go purple, and they do have a point but only a small one. You need to make sure your licenses (“Pay what you like” is a license) are coherent and don’t conflict with other licenses but that’s just common sense. Don’t make two exclusive deals in one territory for example.

You can’t transfer your ownership without transferring your ownership, so don’t think you are endangering your copyright by offering your stuff for free. Don’t feel compelled to add legal mumbo-jumbo: “Pay what you like to enjoy unlimited personal use for yourself and your immediate family, limited to the tracks you have chosen, in the territory where you are resident subject to copyright law.” I don’t need to explain why that’s bad, do I?

(Some artists also fret about their best track being stolen by Sony and making millions for an X-Factor runner-up. That isn’t really a problem of copyright either. If you make your stuff widely shareable and it does get stolen by a Big Content user you have the problem of suing them. Your best bet might be to shame them on social media.)

You may prefer to use Creative Commons licenses but they are limited to certain specific uses and although many people think otherwise they too are based on national copyright law. Creative Commons is a set of copyright licenses.

All your © are belong to us, part 3

Who asked for collective licensing to be extended?

IPO

Since the announcements last week I’ve been reading various government papers and legal articles about the IPO Consultation on Modernising Copyright. Among other things I’ve been looking for the logic behind ECL. While there is still confusion about orphan works and ECL, as far I can see there’s no explanation of who outside government asked for ECL and who will benefit.

The government says it intends:

…to make copyright licensing more efficient and remove unnecessary barriers to the legitimate use of works while preserving the interests of right holders. These include schemes to allow use of ‘orphan’ works whose copyright holder cannot be found or is unknown, voluntary extended collective licensing, and introducing minimum standards of conduct for collecting societies, underpinned by a backstop power to impose a statutory code of conduct on a collecting society where required.

Responses to the IPO Consultation haven’t been published in full so we can’t know what comments consumers or businesses made. If I had responded, my immediate concerns about access to copyright material would be these:

  1. The owners of copyright material are often slow to release products for which there is a clear demand. One example would be a proper remaster of Steely Dan’s back catalogue (2 sets of remasters have been issued but both are simply tweaks to the CD dupe masters rather than the original final master tapes).
  2. Regional encryption and localisation of DVDs locks up copyright material the owners choose not to distribute globally. In many cases Region 1 dubbing or subtitles exist and a UK (Region 2) release would appear straightforward. One anime title I would buy is only issued for Region 2 in an Italian version although there is a Region 1 localisation in English.
  3. Many copyright works are deleted. They remain in the repertoire of record companies, publishers and film studios but are no longer available for the public to buy and unavailable for other companies to sell.
  4. Over the years I have often wanted new material from recording artists who are simply frozen in record company contracts, unable to release new work and unable to escape their contracts to record elsewhere.
  5. Record labels manage catalogues badly. I have personally dealt with 2 cases where current record labels wrongly claimed ownership of masters from the late 1970s and early 1980s. These claims were simply based on a series of transfers of label rosters from one label to another with no reference to the underlying contracts. There must be many other acts in the same position and their work is generally unavailable.

So I can think of cases where copyright content would benefit from more enlightened exploitation but all these are covered by existing collective licensing. The weaknesses here are not the scope of collective licensing but the behaviour of rights owners, yet government proposals to liberate unavailable copyrights make no mention of them.

On the other hand I can’t think of a single real world case where copyright content outside existing collective licensing is unavailable—far from it. There are at least 3 mainstream channels that already facilitate the very thing the government is setting out to do:

  1. Every music act I know with copyrights outside collective licensing makes their material available through YouTube, Bandcamp or some other channel.
  2. Millions of tracks are available through music blogs. These are a mix of copyrights under collective license but also many others. I challenge anyone to find material for which there is any demand, that is not available on a music blog.
  3. As I mentioned before there are many Creative Commons copyrights available outside the collective licensing system.

As far as I can tell government is setting out to unlock material which is freely available while turning a blind eye to real problems with entirely different copyright owners.

So perhaps it is businesses that are after music copyrights outside the existing licensing system? If so you’d expect to find it at the top of this shopping list (pdf) drawn up by young web entrepreneurs: An Open Letter to EU Decision Makers from Neelie Kroes Young Advisors but they don’t mention it at all.

So, at the heart of government policy for modernising copyright—beside real world problems apparently unaddressed—we find a proposal for which there seems to be no known need. Perhaps the demand for ECL is completely outside the music industry, that’s possible. If anyone knows what it is I’d be very interested—ask around, let’s see if we can find out.

All your © are belong to us, part 2

How might ECL change the copyright licensing system?

The principle of copyright in WIPO countries is that creators own the rights to their creations. This inherent right is immediate and requires no further action by the creator.

For 10 years I have advised musicians and composers about the complexities of the music industry on that basis. Don’t panic, you own your stuff and until you decide nothing can legally happen to your work unless you say so.

Now it can.

The government calls this extending collective licensing. Collective licensing is the traditional system whereby PPL, MCPS and PRS operate blanket licenses on behalf of their members. The extension proposed by the government allows collection societies to license non-members’ material without them joining.

That’s the opposite of what we have right now. The current situation is simple, there are 3 categories of content: public domain, rights administered by societies and rights held by individuals.

Collection societies have membership conditions new rights holders sometimes find hard to satisfy. Membership of a collection society is not a given. That is the opposite of what is proposed—the whole system will be turned upside down. Details of government safeguards and other measures intended to make the system work even better than it used to are being published in stages. PPL and PRS are apparently interested in ECL.

My experience of big government projects suggests this may not turn out as hoped. We are told these changes are in the interest of consumers but the only group I see calling for them is Internet commerce—Google and their friends in the free content lobby. That fuels my scepticism. The whole basis of this change is that a substantial body of works whose rights owners are not members should be made available to consumers. Another way to look at it is that Internet commerce wants to enforce a license on otherwise unavailable content.

Changes 1: public domain, opt-ins and opt-outs

Instead of 3 simple categories the system must accommodate more.

Firstly, existing categories probably need some attention.

Public domain

As things stand there are various catalogues of public domain works but no central record. Some of these have been reintroduced to publishing as traditional arrangements (see Alan Price and House Of The Rising Sun). A world where all works have a defined status—previously only society members’ works did—means public domain works must be identifiable otherwise they are liable to be hoovered up by an ECL.

Society members

Society members are covered but even they need to keep an eye out. Many of them have work on public media sites, sometimes attached to non-members videos for example. There is nothing, other than vigilance, to stop these being appropriated by a new ECL society seeking legal repertoire for their clients—the web content lobby.

Secondly, creators who previously controlled their rights by default need to be codified.

Deliberate non-members

Non-members who make their work available to unlicensed Internet sites, rights owners who simply don’t want to join PPL or PRS and others will now need to opt out. Maybe even members of foreign societies who are not members of PPL or PRS (but have royalties collected through them) may need to opt out. All these rights owners must now be identified and in future—how can it work otherwise?—everything they create must be registered by them as out-of-bounds to ECL.

If not they are liable to be badgered repeatedly by an ECL society that wants their work, or even worse keep having to retrieve it from default licensing.

Creative Commons etc.

Creative Commons is often seen as “anti-copyright” but it isn’t, it’s just another set of copyright licenses. To my knowledge none of the CC licenses fit with collection society licensing, so it’s fair to say thousands of CC owners will want to opt out. If not, their rights as non-members are liable to be expropriated by a new ECL society.

Social media and new creators

Many commercially viable works today are created by non-members and people who never considered themselves artists. A viral video for example can earn millions for a non-member on YouTube. They may not be a musician, lyricist or recording rights savvy but their work can be managed and monetised by Google adverts without any PPL or PRS interest. Such work—and the work of thousands of non-viral non-members—might be a prime target for a new ECL. Again, people who never even heard of membership may need to opt out in order to choose the best licensing vehicle for their works, or none. Otherwise they risk being corralled into a default ECL regime which may be equivalent to membership yet worse than non-membership.

Orphan works

Originally orphan works and ECL seemed to overlap, and they still do. The latest but not yet final position is there will be a register of non-exclusive orphan work rights and these will be distinct from non-members works. I look forward to seeing how that is done.

Changes 2: identifying rights owners and their works

Under the existing system only members—opt-ins—need to be identified and it is up to collection societies to track their works. The music industry was slowly moving towards a comprehensive global system of CAE, ISWC and ISRC identifiers. The transcription of paper records has inevitably introduced errors into rights databases and although the system is faulty it works after a fashion.

The new system must identify these new classes of rights holders and their works. I don’t see how this system can function unless their status is formally recorded. That isn’t necessary at the moment.

Consider an example: an extended collective licensing body picks up a YouTube video. There are many possible rights holders (video, composers, phono masters, performers, designers, etc.) but they have no known identifiers. The YouTube poster has a username but that isn’t permanent or controlled and may have no connection to the rights owners. Likewise the work(s) title(s) may be ambiguous, unknown or just wrong. Google’s Content-ID system may identify the work but that system has identified non-music videos as music copyrights so it’s not reliable. The extended collective licensing body must track all these variables and, should the rights owners come forward, assign them and any income to the proper identifiers with their societies or private owners. And that is a very simple example.

There are proposals underway for a Digital Copyright Exchange but we don’t know what it will look like. It could be a new database of hashed or fingerprinted works meta-data tied to standard identifiers. That would be useful but the last I heard it would not be a stand-alone system, rather a network of existing society databases which makes it unlikely to deliver the new requirements.

Will regulators ensure creators are safeguarded or will they nod through a system that implements the will of the government just to get the job done? I think we can reflect on past performance of government as a yardstick.