© is good for artists, ask them

Today I was copied into a Twitter conversation about copyright. It began with an interesting article about The Limousines and a rather badly informed interviewer taking issue with crowd-funding. From there it developed into a downer on copyright in general.

Let’s consider the Torrent Freak article quoted here:

tweet

140 characters won’t do it justice, so here’s my reaction.

Rick Falkvinge says gatekeepers take 99% of the money. That’s true. I’m well aware of the Tamla Motown story and how artists are gouged by the record industry but that’s a feature of the record industry not copyright.

I’m not interested in labels, especially big labels, and I see publishers as largely incompetent. The future—for creative music at least—is happening outside of all that. Independent artists (the ones I’m interested in) don’t give up 99% of their earnings to gatekeepers. They rely on their copyrights.

Rick Falkvinge says “Eliminate those gatekeepers and those 93% of the money go to artists instead – or at least, a significantly larger portion of it.” But if the artists have no legal claim to their work how can they earn from it?

We don’t have to guess how big business would behave in the absence of legal ownership. Sam Tarrantino (Grooveshark) makes money out of other people’s work. So does Kim Dotcom (MegaUpload). And so, of course, does Google and many others. They pay the artists nothing.

Tunecore screens uploads for tracks that are simply copies but they still get through and often appear on iTunes and other retail sites. Without ownership of their work how can the money “go to artists“?

Rick Falkvinge says:

The myth that the copyright monopoly is needed for any kind of artistry to make money, or even to happen in the first place, is an obscene myth perpetuated by those who have something to gain from skimming off 90% of the artists’ money by denying them an audience in an old-style racketeering.

But I can point him to hundreds of artists without any record label who say otherwise. Perhaps he can tell us how composers who write for TV and cinema would get paid (composers are getting a PRS distribution right now). Without copyright that money wouldn’t find its way to artists, it would simply stay in the pockets of TV and film studios. How would artists get paid by radio?

The old mainstream system was and still is corrupt but because of greed not copyright. The new technology companies want everything for nothing and would rather see the back of copyright. The old and new mainstream are both playing the same game.

17 thoughts on “© is good for artists, ask them

  1. Hey thanks for the response, this is a problem I’ve been researching a lot and it took me very many months to arrive at ‘an’ answer. I don’t have a conclusive answer, I’m still thinking about it.
    The thing is the vast majority of works are not held in copyright by the original authors. If copyright was by some miracle abolished tomorrow, that would mean a huge number of artists getting their right to copy back, which would result in a massive net profit for all artists in general (because they can republish).

    The second point was that copyright funnels creators into just one business model out of thousands of different business models, (& i think this is the killer problem). copyright is a monopoly on distribution – just the distribution. not the creation. but a monopoly on distribution causes people to think that they can only profit by distribution. They forgo innovation, they forgo creative business models which is the very lifeblood of all economic activity. Crosbie always says, sell music, don’t sell copies. there are thousands of examples of indie artists who have now embraced the new paradigm of selling music, not copies. https://www.techdirt.com/blog/casestudies/

    • You raise a lot of points, which is good. Here’s what I think.

      I guess most works are either public domain or owned by the authors. What we see in the charts and what has been written in the last 100 years for the record industry is a smaller amount, even though it has been the most visible.

      If copyright was abolished tomorrow, and the artists had no right, how would they get the right to copy? Haven’t we just abolished that?

      What I see across the indie/DIY music sector is a mass of different business models: virtual tip jar, crowd-funding, pay-what-you-like, buy-one-share-one, gigs only/no recordings, and many others. Copyright doesn’t prescribe a business model and it doesn’t preclude the artist doing what they like with their music. They can give it away, share it or keep it locked up. The choice is theirs.

      I wouldn’t agree copyright is a monopoly, it is a right to creative work not a general class of goods or services. (This is “monopoly”: the exclusive possession or control of the supply of or trade in a commodity or service: e.g. the state’s monopoly of radio and television broadcasting.)

      If I won’t let you hear my song you can go to someone else, so I don’t think it’s a monopoly. It is an exclusive right to a specific work but not a monopoly.

  2. For example, this is one example: https://sharingisliberty.wordpress.com/2012/09/18/pirate-coelho-dont-they-understand-that-if-i-hear-a-song-and-i-like-chances-are-that-i-will-buy-the-cd/ This is my example of how it works: http://fuwanovel.org/faq/2

    Also Artists need more than just money. They need the freedom to copy and
    re-use culture that has been published. How are Artists supposed to turn a profit if they cannot build on existing work that has already been made? Copyright forces everyone (everyone who is poor) to create from scratch. They are creating the same material that has already been made, which means it is even-harder-to-profit. The idea that ‘copyright helps artists profit’ is suspect if it is simultaneously raising the cost of their expression greatly.

    “Because if you can’t learn from others, then you can’t innovate yourself or make any useful innovations. Innovations require learning. Development requires “emulation”. And if you make emulation illegal, you shut it all down.” – Sam Ferguson (see Everything is a Remix)

    • I completely agree with Neil Gaiman (I’ve posted his stuff before) but he isn’t opposed to copyright. What he’s doing there is using his rights creatively—without any copyright at all he wouldn’t be able to sell his books at all. All the music I heard growing up was free, on radio or borrowed. That is becoming increasingly hard to do legally in the modern world. You can’t legally borrow or lend big label digital music from most acts, but that’s not a copyright problem, it’s a big label business model problem.

      On the next point of copying and re-use I don’t see a real issue. Copyright applies to certain specific characteristics (such as a recording or sufficient words) or subjective ones such as “music”. Within existing law there is plenty of room to copy and re-use without infringing. If you look at The Beatles, The Kinks, The Who, The Small Faces… they all copied previous work and each other. You couldn’t say Led Zepellin’s catalogue, for example, was created from scratch (they credited some old bluesmen for lyrics but otherwise most of their compositions were their own—I like them but they weren’t completely original).

      How else do we get derivative genres (like most chart music) if the writers are all working from scratch? One of my favourite examples is folk music, say Irish. You can instantly recognise an Irish folk tune by the rhythms, the instrumentation, the subject matter and the style.

      I completely agree the practices of many big labels and publishers do mitigate against creativity but that’s not a feature of copyright itself.

  3. Now then, one correction, worth having a look at how Dickens made money in the states from selling books without copyright there. Wish to god I could remember where the link was but I’m on limited access here at the moment.
    I’m a bit split on copyright. I certainly think that in its current form it has gone too far. It lasts too long, takes too many forms and, as a result, takes too much money out of the system to administrate even if it operates to the creators benefit.
    Actually I think we could live without copyright but it would require a shift of mentality and business practice. If you want music in your movie you have to pay someone upfront for it. If you’re the composer you need to charge a one-off fee rather than relying on royalties. Fund via kickstarter or similar for the creation. etc etc.
    This causes its own problems though, in that it drives up your production costs for anything that uses art created by others. So maybe you agree some kind of revenue split from the proceeds and, oh look, you’re almost back to copyright…
    But without the disadvantage of intermediaries taking a cut.
    Personally I have no problem with someone making money off my content – if they’ve figured out a mechanism to monetize it then good on them. Maybe I’ll copy their technique or methods (if I can).
    But I do want to be credited with the creation.
    Ha! It occurs to me that what I’m heading towards is the collection of Creative Commons licenses. Maybe we just need to keep reminding people that these exist and that there’s more than one way to skin a cat.

    • I would say in its current form there are many different business models based on copyright. The one everyone tends to see—and some people believe IS copyright—is the Big Content system: big record labels, movie studios, big book publishers, big media and so on. But copyright is also the basis of the creative cottage industry.

      (You’ve probably seen recent cases where boutique designers had jewellery or cushion patterns ripped-off by Taiwanese or Korean forgers and sold into the mass market by Marks and Spencer or Asda. That’s what would happen freely, without copyright.)

      All copyright does is give you the options. If you decide to give everything away freely (e.g. downloads, even CD-Rs) but sell a premium package of CD, book, videos, T-shirt, and gig tickets to hardcore fans (a simple version of the Trent Reznor model) you can do that with traditional copyright. Without copyright HMV would be able to flog the premium package too, legally.

      You can make all your stuff available for donations, pay-what-you-like-or-nothing with traditional copyright, or just do it all for love. If you did that without copyright someone could get a free copy of your video, put it on YouTube and collect the profit-sharing ad money from Google.

      Copyright doesn’t necessarily mean lots of work for lawyers. It doesn’t mean you have to use a traditional record label. For practical purposes you would probably use an administration service (typically 5-10%) for publishing collection but you can collect your PPL direct. (You can even collect all your publishing direct if you want to do the leg work.) So copyright doesn’t even have to involve middlemen.

      I don’t understand, in your suggestion about one-off fees instead of royalties for movie music, how the composer would get paid. As a movie producer in a world without copyright you could simply sync any music you wanted without paying anyone.

      There was a case just this week where a royalty-free music library got busted for licensing copyright classical works. That’s what the world would be like without copyright or equivalent recognition of the creator’s ownership. Middlemen would hoover up all the content they could find and legally re-sell it.

      (We discussed Creative Commons briefly on Twitter. CC is a set of boilerplate copyright licenses, basically copyright legal work done for free in the form of several blanket licenses. The fact is most people in the DIY world are in no position to go to court. Even Robert Fripp has been unable to assert his ownership of the King Crimson catalogue with EMI—they are still selling stuff they have no rights to after 20 years! So we should be realistic. My preference is for plain English terms that fit your particular way of working with full retention of copyright (you don’t want to find Hollywood has picked up your biggest hit under a CC license that allows them to get it cheap, so you still need to understand those CC licenses if you use them).

      I think the analysis that the ills of the big content industry are the ills of copyright is wrong. If you eschew copyright with the intention of avoiding the Major label business model you’re missing the point. The Major labels are all about monopoly control and big business, copyright itself is not. In some ways it is the opposite.

      • Couple of things here, “As a movie producer in a world without copyright you could simply sync any music you wanted without paying anyone.” that works as long as you don’t want any new music.
        But that doesn’t then square with “Middlemen would hoover up all the content they could find and legally re-sell it.” There’d be no reason to buy from middlemen.

        I haven’t done enough reading and thinking about what a world without copyright would look like, but we had it before, the US had it relatively recently, people still made money. I fully accept that the web has made it a different world since then but I suspect that for everything that works against you there is something that you can turn to your favour.

        I agree with most of the rest of your points though, especially the conflation between copyright as it is used by the major labels and what the law actually allows.

        But I still think it’s ripe for reform, both in terms of recognising the new technology and in terms of reducing duration.

        • I think both of those apparently conflicting things are possible, at the same time. Without copyright (or some kind of ownership right) the originator would have no prominence over other sources, so people could get any content anywhere and use it for any purpose. In that world a movie producer could pick up anything (including film or soundtracks) and use it. As we know from YouTube etc. the mass of undifferentiated content on the Internet, especially if all the labels, libraries and publishers were gone, would be daunting for any user. You might still have a role for agents to do the filtering and maybe charge for that service. What seems certain to me is the individual artist (unless they were already famous) could have no prominence in that economy.

          Copyright has roughly arisen in each sector as mechanisation occurred. So copyright on text and lyrics preceded copyright on sheet music and subsequently orchestrons and pianolas, then finally audio recording, with mechanical copyright (the copyright in the master recording itself) coming last. That last right was then divided among labels, performers and producers in the mid-1990s.

          The world in which there was no music copyright also had no radio, television or film. Individual musicians and composers lived entirely on live performances and commissions and customers for compositions had no other way of securing works until sheet music arrived. But copying occurred even before printed sheet music. I don’t think there was a golden age when it was all rational and fair, and certainly not a world anything like today’s broadcast, network or duplication technology.

          Copyright is currently being reformed in several waves but the outcome is uncertain. Some of the changes I like others I don’t. I agree copyright duration is too long (from memory I think it was originally 14 years). It’s an interesting time.

          • Thought more about the conflicting things and agree with you, cf lyrics sites – ok they’re not selling you anything but they’re collecting stuff together and then selling ad-space.

            I think the thing that copyright has yet to really get it’s head round (if I can talk about a concept in that way) is that we’ve gone beyond the stage of any form of the physical. We are into (to all extents and purposes) the infinitely replicable, but when I read about the various reforms being suggested they still seem to be trying to picture the situation by way of analogy to the pre-internet world – and fundamentally this is holding back the thinking that I’ve seen.

            Copyright got out of control in the hands of the major labels and studios, some would argue that it’s karma that a lot of people have lost all respect for it, but i think that’s potentially throwing away a useful mechanism to help artists create.
            Going back to 14 years, possibly less, would be a good step. Simplifying and updating the licensing would be a good second step. E.g.
            If I record a cover and make a cd with it on, I have to pay a mechanical license.
            If I record a video of that cover track and stick it on youtube then I need a sync license.
            If I record an mp3 only – no cd, no video – it’s actually not clear exactly what license I do need, especially when you look at the variations across countries.

            Anyway, off to check if last night’s efforts on cubase are actually worth working with or whether it’s scrap-it-and-start-again time!

  4. bemuso wrote:
    > (You’ve probably seen recent cases where boutique
    > designers had jewellery or cushion
    > patterns ripped-off by Taiwanese or Korean forgers and
    > sold into the mass market by Marks and Spencer or Asda.
    > That’s what would happen freely, without copyright.)

    Mandatory links that may prove you wrong:

    A Look At How The Fashion Industry Thrives Without Copyright
    http://www.techdirt.com/articles/20100526/0039459578.shtml

    Giorgio Armani Realizes That Fashion Copying Isn’t A Bad Thing
    http://www.techdirt.com/articles/20090217/0136333790.shtml

    bemuso wrote:
    > If I won’t let you hear my song you can go to someone else,
    > so I don’t think it’s a monopoly. It is an exclusive right to a
    > specific work but not a monopoly.

    If your song (or whatever other kind of creative work, for that matter) is in your private possession, then yes, you will be able to not letting me hear/copy it.

    But once it’s been published (and that’s the keyword here: to publish, that is, to make it public, that is, to stream it into the public domain), I really consider I’ve the right to listen to it, and moreover, to copy it. Your copy’right’ (copyprivilege would have been a better name) is, in fact, the intent of suspending my right to copy.

    It’s a paradigm shift, not to a new one, but to an old one, back to the way culture used to work until some clever (and in an hegemonic position) people found a way to (try to) exert control (and it has gone too far and too unethical) over the way other people use/consume/enjoy artwork & knowledge that’s already on the one-and-only public domain.

    • Hi Julián, thanks for your comments.

      I’m familiar with Techdirt and Mike Masnick and I frequently refer to his research. I would re-phrase that first headline to read “…How The Fashion Industry Thrives Without Enforcing Copyright” because we do, after all, still have copyright. The woman on TED is wrong, at least in the UK, to say there is no copyright or IP protection in the garment industry (see point 3 here). But on the general point about sharing ideas, designs and articles I’m completely relaxed about it. Copyright (or any of the other IP protections for services or trades) is there to be used or waived at the owners’ discretion, as far as I’m concerned anyway.

      In the music business, which is my interest, there is a great deal to be gained by copyright owners waiving their rights for a wide range of applications (e.g. non-commercial file-sharing). File-sharing can only be a good thing. But without the underlying copyright the originator has no waiver, they will simply be ripped off like this.

      As far as the Giorgio Armani article goes I do know many artists in the decorative arts are not so relaxed about having their work mass produced in Korea and sold in chain stores. Once again—that article is 2009—there is certainly IP protection besides trademark protection in that area here today. Also, even without direct trademark copying, similar designs are often liable to action as “passing-off”.

      On your last point I completely agree. These days I buy all my music but until I was in my mid-twenties I couldn’t possibly afford to buy all the music I wanted to hear, so I taped it from radio. Even now I still share a lot of CDs and music files with friends. Strictly speaking that’s illegal (for Big Content material at any rate) but everyone does it. As long as it’s not commercial who cares? Copyright is not opposed to that idea. Many artists—the ones I know best, some of them well-known composers—copyright all their material but happily allow non-commercial sharing. Without some owner’s right like copyright these artists’ work would be traded commercially and they would be unable to stop it.

      • “Even now I still share a lot of CDs and music files with friends. Strictly speaking that’s illegal (for Big Content material at any rate) but everyone does it.”

        Not everybody does it. I don’t do it. Honest people don’t do it. People who respect other people’s property and the hard work that goes into their production don’t do it.

        It’s illegal, not “strictly speaking,” but for the same reason that it would be illegal to walk into a convenience store, slip a candy bar into your pocket and walk out without paying. You would be taking somebody else’s property for your own use without the consent of the owner.

        Copyright means that the rights holder (that is the author of a creative work or the person to whom the author assigns such rights) has the right to choose whether or not such copying will be allowed.

        But not everybody does it. You might not know very many of them, but there still exist people who respect the property of others.

        • Your candy bar example doesn’t really work for me Steve. Sharing music files may or may not be illegal (some cases are but in others aren’t—a promo file for radio for example might be intended for sharing) but let’s say sharing files is illegal, for clarity. On the other hand sharing a CD of the very same content is not illegal—bear in mind I am literally talking about sharing here, not copying. I don’t share to avoid paying.

          So that’s not really like a candy bar at all is it? You can loan friends a physical recording but not a file of that recording? The candy bar is like a CD but not like a music file.

          I completely respect the property of others. Every file I keep is paid for, many I listen to and don’t like are discarded.

          As you know, the offence is “copying” not lending. Of course, you can’t lend or borrow a music file without making a copy but that’s a technical point isn’t it? If you don’t keep stuff why should you pay for it? Listening to music files is no different from listening to the radio and we don’t have to buy every track we hear on radio.

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  7. > “But if the artists have no legal claim to their work how can they earn from it?”

    This is the first point, and the answer is: because fundamentally they have a *physical* claim to their work: that is, they can physically withold release of it, or even not do the work in the first place. This basic situation enables bargaining: the customer wants some product and has some money, the artist wants some money if they are to expend effort on producing — so they agree an exchange: handing over money for working on product.

    The implementation task is to bring multiple customers together rather than have the trade with a single one. That is certainly possible, and indeed there are actual examples like Kickstarter. How extensively and efficiently it can be done cannot be deduced, it must be tried in practice. No answer can be given now, we just have to see.

    > “Without ownership of their work how can the money ‘go to artists’?” (“… makes money out of other people’s work … They pay the artists nothing.”)

    This is the second point here, and the answer is: funnelling all money back to artists is *not* what an efficient system would do anyway. The proper aim is simply to enable artists to produce — to ensure their costs are covered by their payment, which is indeed the root rationale of the copyright system itself.

    Whether anyone else makes money ‘from’ artists’ work is not critical. Because the products are non-rival it is in fact not merely *not* detractive, it is positively *good* if others use/trade/etc. the goods. Informational-goods are almost infinitely copyable which means general use adds value into the economy at near zero cost — the more usage the better off we are.

    (If someone is charging for (‘making money out of’) some of this non-rival surplus, as long as there is not a particular problem with the market we can assume they are offering some useful service. Again, this is not bad, but good.)

    To sum up: we ideally want a system that: 1, sufficiently enables artists to produce good stuff; 2, allows that stuff to be as widely available as possible. That would be maximally good. And *how* we do that is not deducable but must be arrived at by experiment and practice.

    • Thanks for commenting HXA.

      I completely agree your last paragraph but I differ on the way there.

      Kickstarter and other crowd-funding sites are certainly useful but copyright helps them to a degree. Say for example I crowd-fund my new album, $10 for the basic CD, $50 for the premium box, etc. and feed demos to supporters. First of all those (now) no longer copyright demos would be freely available to all on release and reduce the incentive to pledge. Second, anyone could run another Kickstarter (or whatever) offering my premium box, the product that will actually get me into the black, for $40. My outlay is the whole project and modest production, their outlay is just one copy of the box and a Chinese duplicator as soon as the box is released. Without some protection I don’t see how the artist could win. Hardcore fans would still buy from me but they have never been a problem, the rest of the market would go to the most prominent, convenient and cheap alternative.

      Most of the non-music-file products suggested as replacement income for musicians are also copyable cheaply (T-shirts, booklets, posters, digipacks, etc.). The only one that isn’t is some kind of personal service (home concerts, etc.).

      Of course, withholding the product in the first place isn’t going to earn anything at all.

      Next, I have no problem with middlemen making a cut on the artist’s work but I don’t agree additional sources of the same product can be non-rival. My Kickstarter box is $50, if another source (especially one with a big brand name and massive presence, like Amazon) can pump them out for $40 that is most definitely a rival good and it will hurt the artist. So it would not be good. Big aggregators definitely offer a service to the customer—aggregation and lower prices—added value that does nothing for the supplier. But sure, if third parties can make money without affecting the artist’s income I have no ideological problem with the idea.

      In the specific context where I asked “how can the money go to artists?” I was talking about the removal of existing gatekeepers. I can’t see any reason why abolishing copyright would put, say, Universal out of business or out of the loop. All their source material, and material previously assigned to other middlemen, would then be available for their unrestricted use. Shareholders would rightly kick up a stink if Universal paid The Beatles another cent, or if they didn’t start mass producing rivals’ content.

      Your final point is precisely right and I believe that experiment and practice is well under way. I don’t think we’re seeing any long term solutions out of Big Content at the moment but people I support, independent and DIY artists, are trying a lot of different ideas and many of them already work well on a small scale which is fine for their purposes. Without the protection of copyright it is doubtful they could succeed longer term. Whether there is a new global scale solution for big record labels etc. interests me much less.

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