Klarinet Archive - Posting 000052.txt from 2010/07

From: Joseph Wakeling <joseph.wakeling@-----.net>
Subj: Re: [kl] Sheet music copyright
Date: Tue, 06 Jul 2010 10:20:40 -0400

On 07/06/2010 05:11 AM, Bill Hausmann wrote:
> The difference is small and irrelevant. Your third example is
> equivalent to stealing the FEE, and that is the point. It is really
> not the intellectual property you are stealing, but the FEE to which
> the creator is entitled, which clearly DOES deny him property that is his.

The two are not equivalent. If I take money from your wallet, that's
money that you had, directly taken away from you.

If I copy a composition of yours without paying you, then the situation
is different -- first, because you still have your copy of the
composition; second, because perhaps I would never have obtained a copy
had I been unable to do so freely, in which case we cannot practically
speak of "lost income". You were never going to get that money anyway!

Rightly, the law does not regard the second fact as an excuse for the
failure to pay expected fees. However, it's reasonable to wonder if,
given that a public good (access to a work) has been achieved in
circumstances where it would not otherwise have happened, and given that
no extra income would have resulted (the copier wasn't going to buy the
music anyway), there should be scope in the law for this kind of copying.

The answer to the question should depend on whether, overall, permitting
such copying has a net positive or negative effect on two things --
overall public welfare (represented by creation of and access to
innovative works) and the income of creators.

Contra to what you and Kevin have maintained, it's not clear that the
effect will be negative in either case. Even if there _were_ a net
negative effect for creators, it's not clear that the net negative
effect to society of maintaining or reinforcing existing legal
constraints on private copying won't be far, far greater.

For example, you might not care about having free access to
non-commercially shared copies of artistic works, but you might care if
the only way to access creative works legally was to submit to a system
of intense and intrusive personal electronic surveillance.

> As I said before, if you can come up with a different system that
> provides monetary compensation to the artist, please present it. In
> the meantime, the current one is in force, the ease and reduced cost
> of photocopying and file sharing notwithstanding.

Bear in mind that a great deal of intellectual production is carried out
under terms where the creator does not maintain copyright and does not
receive royalties -- it's called "work for hire".

I don't thing there will be one single "different system", more likely
several different ones that will address different creative areas.

If we take musical theatre as an example, it's not clear that the costs
of engraving and archiving (in electronic form) the scores cannot be
factored into the costs of original production, that study scores and
piano reductions of songs be distributed freely for private use, and
that performance parts be made available under rental with parts of the
rental fee (and charges for commercial performance) going to the
originating theatre and the composer.

Look at how that breaks down: the theatre needs the score, parts and
piano reductions available anyway, so it _has_ to pay for their creation
one way or another. It can place its own promotional material in the
electronic copies (free publicity on every copy made!) and have hard
copies sold in its in-house shop and through other distribution
channels, from which royalties go to both theatre and composer, probably
more equitably than is the case for existing publisher-composer deals.
When a commercial use of the work kicks in (which is where the serious
money is anyway) they are protected and can charge the usual performance
fees alongside rental charges for parts (because they only made
available piano reductions and study scores for free copying).

The theatre has an incentive: every time it originates a new work, it
will pick up future revenue from every future commercial production, and
it has an incentive to distribute the study scores etc. in order to
create publicity to encourage such productions. The composer's
incentive is that the loss of revenue from sheet music sales is likely
to be offset by the better share of total revenue received thanks to
doing the deal with the theatre rather than the publisher. The public
benefits because private study materials for the music are freely
available and it's only when commercial performance kicks in that the
question of fees arises.

The only major loser in that scenario is the traditional publisher whose
business model is centred around payment-per-copy. But that's the
nature of business models -- they go out of date.

I'm not certain the above model would work -- actually, I just made it
up -- but I'm fairly sure that the main reason it isn't being tried out
is that most of the composers out there have been locked into the
traditional publishing and revenue model. Too many are not even
thinking about issues of copyright or alternative revenue models, and in
the present circumstances that's dangerous.

Give it a generation change -- young people who have grown up seeing the
personal benefits of private sharing and consider it immoral to
constrain -- and you will likely have a different reaction.
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