Huntingdon College: Political Science and Public Affairs Program

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Intellectual Property, Copyrights and the Music Industry:
The reason for copyright law:
“To promote the progress of Science and Useful Art by securing for limited time authors and inventors, the exclusive right to their respective writings and discoveries.”
-The Constitution- Article 1, Section 8
What makes Music copyrights different from other types of work?
At one time there was not a large difference.
However, with the development of the Internet and CD’s it is now much easier to infringe on this type of IP.
Each group needs special requirements for protection.
Music is the most frequently infringed type of IP.

What does a copyright do?
Attempts to protect an intangible piece of work by assigning it the value of “property.”
It is often said that the copyright owner is not being damaged by many of the copies because they would not have been purchased if the infringing copy had not been available.
If a work is copyrighted then the usage of the work is limited to what the copyright holder gives or sells the rights to use.
The Nike corp. bought the rights to use “Revolution,” by the Beatles, from Michael Jackson, who owns the copyrights to the Beatles songs.

What are non-infringing exceptions to copyright that protect the user and other artists?
Distribution/Selling of original copies
Fair Use
Sampling

What is included in Fair Use?
Educational Use
Limited at 10% or 30 seconds whichever is less
Usage must not change the basic melody or fundamental character of the work.
Governmental Use
Must be for training purposes
Sampling
Such as parody or satire

Sampling
In regards to music, sampling can be very complicated.
In order for an artist to sample another’s work without permission the work that is being used must be changed in a way that is satirical or changes the song in a way that greatly differentiates the new version from the original.
A percentage of the work cannot be used with music because of the repetitive nature of music.
Many times the same rift or lyrics are repeated over and over throughout the song therefore making it impossible to put a percentage of how much can be used.

Copyright Today vs. Yesterday
Length as of 1998:
Life of the author plus 70 years
Federal law
Civil and Criminal protection
Increase in the penalties for infringement.
Many more ways to infringe.
Length in 1909:
14 years with a one time renewal of 14 years
Common law
 until the work was published with strict technical requirements for federal protection
Only musicians and companies producing phonorecords could infringe.
Why has copyright changed?
Globalization
Technology
Longer life-span
Organization of record-labels
Amount of money to be made off of records

Important amendments in copyright history
Copyright Act of 1976
Piracy and Counterfeiting Amendments Act of 1982
Berne Convention Implementation Act of 1988
Copyright Renewal Act of 1992
No Electronic Theft Act (NET Act) December 16, 1997
Sonny Bono Copyright Term Extension Act
Fairness in Music Licensing Act of 1998
Digital Theft Deterrence and Copyright Damages Improvement Act of 1999

Public Domain
The “Death” of copyright
With copyright length set at life of the creator plus 70 years it is not always easy to find the copyright owner in order to ask for permission.
Such was the case when Eric Clapton recorded his version of Robert Johnson’s “Crossroads Blues.”
Freedom of any person to use the material in any way shape or form, without payment or permission from the creator or previous holder of copyright.
Once a work enters Public Domain, it can not be brought back under copyright control.

The problems facing copyright
Infringement
Technology
access to and low cost of copying and mixing equipment
Internet/Globalization
the world has become much smaller, with access to someone half-way across the world as easy as access to someone down the hall
Radio, Television, Internet, Peer-to-Peer sharing and many more growths.

Jeffersonian Principle
Lack of conscience regarding infringement
Lack of agreement
All artists do not agree that peer-to-peer infringement is wrong.

Why are these problems so important?
The realm of IP and ways of obtaining it has drastically outgrown the law.
It is not possible to amend the current law to maintain the same style of copyright that existed before the recent technological advances.
The state of IP is something that must be addressed by law makers in the near future if it is to survive in any form.

Now comes the Internet…
Peer-to-Peer sharing
Napster, Morpheus, KaZaA and friends.
All are similar in operation and that they are file sharing devices.
All are very different in how they operate.
None of the actual software violates copyright.
They all provide the means in which a user can violate copyright–if they first violate the user agreement of the software.

Napster is Dead
The copycat programs that it spawned are much further up the evolutionary scale.
Napster was easy to kill.
Central database
Parent company totally based within the United States.
“Home base” had the ability to disallow certain files from being shared.
The software did not include encoding.

KaZaA
The ultimate peer-to-peer software on the evolutionary scale.
Will be almost impossible to kill
No central database
Software includes encryption.
Parent company, Sharman Networks, is a complex multi-national company.

The Internet is not all bad!
Musicians use the Internet to sell their merchandise and promote shows, even well known artists.
Many not so well known artists and even some well known ones are not even against the peer-to-peer sharing files because it is publicity that they would not have otherwise.

“We have been letting people tape our concerts since  the early seventies, but instead of reducing the demand for our product, we are now the largest concert draw in America, a fact that is at least in part attributable to the popularity generated by those tapes. The fact is no one but the Grateful Dead can perform a Grateful Dead song, so if you want the experience and not its thin projection, you have to buy a ticket from us…our intellectual property protection derives from our being the only real-time source of it."
-John Perry Barlow

Is there anything that can be done?
Sharing copyrighted material in such a way is already illegal.
At this point the software cannot be stopped because of the Internet’s nature to cross countries boundaries without adhering to the laws of that country.
The only option that the law currently offers is to go after individual users of the software within the United States and possibly members of the Berne Convention.

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Bibliography Barlow, John Perry. 1994. “The Economy of Ideas: A framework for rethinking patents and copyrights in the Digital  Age.” WIRED 2(03): 1-13.
DuBoff, Leonard. 2002. “Publish Or Perish.” Oregon State Bar Bulletin. August/September. (Westlaw)
Harmon, Amy. 2002. “Music Industry In Global Fight On Web Copies.” New York Times A1 and A6.
Hazard, John W. Jr. 2002. “Copyright Law in Business and Practice, Revised Edition.” WestGroup (Westlaw).
O’Connor, Sandra Day. 1991. “Feist Publications, Inc. v. Rural Telephone Service Co.” 499 US 340, 349
Peters, Marybeth. Register of Copyrights. Speech before the House Subcommittee on courts and  Intellectual Property. H.R. 2265, 105th Congress, 1st Session. September 11, 1997.  http://www.loc.gov/copyright/docs/2265_stat.html.
Rieger, John director. 1993. “Art and Music Sampling: The Death of Creativity.” KPFA Radio . Program #5-93. (Bruce  Hartford, Bob Haslam and Don Joyce Panelists)
Scully, Jed. 2002. “Beyond Napster–Is it just music? Or are judicial resolutions ineffective in Digital Commerce?”  Symposium University of the Pacific, McGeorge School of Law.
United States Code Title 17. last revised 2001. http://lcweb.loc.gov/copyright/title17/. The Library of Congress.
Vaidhyanathan, Siva. 2001 Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens  Creativity. New York: New York University Press. (section of the book can be found at  http://www.msnbc.com/news/594462.asp)
Wingfield, Nick. 2002. “Napster Boy, Interrupted: Shawn Fanning Discusses Demise of His Brainchild And Future of  Online Music.” The Wall Street Journal Tuesday October 1.
Zomba Recording Corp. v. Audiogalaxy Inc. 2002. “Music Industry Sues Another File-Trading Service.” Andrews  Computer & Online Industry Litigation Reporter 19(22).
Thank You!
Angie Aparo
for allowing his songs to be used in their entirety.

To those who gave the time for personal interviews:

Ricky Carden. Singer/Song writer, Hokes Bluff, AL.  Interviewed, October 17, 2002, at author’s  residence.
 
Johnny Chandler. sound engineer, song writer, owner and operator of small recording studio in Jacksonville, AL. Interviewed, October 13, 2002: 3PM. at his studio.
 
Michael Wright. Singer/Songwriter and booking agent for Music Garden, Montgomery, AL. Interviewed, October 28, 2002: 12P.M. at the Capitol Inn Restaurant.

And to the Proofreaders…
 Debbie Shaw
 Tommy Witte

Play Music ...

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