Klarinet Archive - Posting 000196.txt from 2010/07

From: Joseph Wakeling <joseph.wakeling@-----.net>
Subj: Re: [kl] Sheet music copyright
Date: Mon, 12 Jul 2010 12:41:23 -0400

On 07/11/2010 07:43 PM, Bill Hausmann wrote:
> Fair remuneration is determined by the market.

And the scope of the market is determined by the law -- by
government-enforced regulation -- of which copyright is one example.

> Free copies of merchandise that otherwise must be paid for damages
> the market and destroys value.

... but the market value of intellectual works is entirely dependent on
there being an enforced copyright system. In the absence of such an
enforcement system, the market price of (electronic copies of) books,
audio and video media, etc., tends fairly inevitably to zero. As the
British Royal Commission on Copyright put it back in 1878:

"Copies of such works may be multiplied indefinitely, subject to
the cost of paper and of printing which alone, but for copyright,
would limit the supply, and any demand, however great, would be
attended not only by no conceivable injury to society, but on the
contrary, in the case of useful works, by the greatest advantage
possible."

(... already quoted a few emails back, I believe.)

Why not attempt to find a way to work with that market force (and
demand, as seen by the number of people filesharing) rather than against it?

> Of course, there is not real or artificial scarcity involved. If the
> demand is there, more legitimate copies will be printed. The only
> situation where this comes into play is out-of-print works. In this
> day and age, of course, there should be no such thing, and Barnhouse
> has proved that by putting essentially everything they have ever
> published into a computer database so it can be accessed.

I don't know what you can call a legal constraint on copying for the
sake of enhancing the sales price, apart from "artificial scarcity".

"Out of print" is in itself an interesting case to consider. One of the
disturbing sides of the present move towards print-on-demand and
electronic distribution is that publishers are able to claim that the
work is not out of print, even when they are doing nothing to promote
the work and it has not shipped any copies in a long time. The author
is then unable to form a new deal with a more appreciative or supportive
publisher.

Do take care to observe how copyright and other laws around publication
often serve publishing companies at the expense of both the public _and_
creative artists. The "property" view of intellectual works is a case
in point -- it's not in the interest of creators of new works for there
to be too strong property-like constraints, because they benefit
strongly from having an intellectual commons from which to draw when
creating new work.

Think how many truly great new works of art have drawn from fairy
stories, or from myths and legends.

>> Now consider the moral and practical good that can come from free
>> noncommercial redistribution, by allowing access to intellectual work to
>> all sorts of people who could never otherwise have afforded it.
>
> It does not matter if there is nothing TO distribute.

My impression has been that with the internet there has been a massive
_increase_ in the creation and sharing of original works -- high-quality
original works of creators who have made a deliberate decision to share
their work online.

It might not be occurring within the market model envisioned by the
"intellectual work as property to be sold" view of things, but that's
because that model is a flawed and limited picture of what motivates
people. It doesn't even work for physical property, let alone creations
of the mind.

As Richard Stallman said of software, "I'm not denying that money
provides an incentive, but [people who oppose free(*) software] are
denying all the other incentives that exist."

(* "Free software" = "free as in freedom", not price. See
http://www.fsf.org/about/licensing/essays/free-sw.html. Note that this
is a case of a legally-enforced intellectual _commons_, rather than
property, model of creative work, that has proven not just sustainable
but arguably more fertile and creative than the proprietary software
industry. It works for software. It's not clear that it can work for
artistic works, but it's a clear blow against those who insist that
property-like rights are essential for sustained creativity.)

> The public good is best served by making sure the producers of
> intellectual property are rewarded for their efforts in a logical and
> sustainable manner so they are free to produce new works.

... which is not the same as saying that the producers of intellectual
works should be granted property-like rights in their creations.

> Not "stupid," maybe, but uninformed. The girl had NO idea that
> distributing free copies of Mr. Brown's work had a direct negative
> impact upon his very livelihood. She saw it only as furthering his
> reach to the masses, which is nice, I suppose, but does not
> necessarily help him if he goes broke in the meantime.

I wouldn't say "no idea"; from what she said, it's apparent that she had
considered the question, and considered that distributing free copies
was something that had a small negative impact on him compared to a big
positive impact elsewhere.

It also related to the fact that in her case, and the case of many
people that she knew, access was constrained -- that it didn't matter if
she actually had the money or was willing to pay it, since making the
payment was for her impossible since she didn't have a credit card.
That's a clear market failure, since the demand is there.

Bear in mind that, had the composer in question actually been in any
kind of financial difficulty, her attitude might have been different.
Despite all this copying going on, Jason Robert Brown seems to be doing
financially all right, thank you very much, with plenty of incentive to
keep creating. We spoke earlier of "fair remuneration" -- one of the
reasons many people feel at ease in copying is because many of the
people whose works they are copying already have a very fair income, and
some.

Multimillionaires like Madonna who come out against filesharing risk a
strong backlash, because who can deny that Madonna has received fair
remuneration for her work? A genuinely needy creator who approaches the
community in a spirit of collaboration, on the other hand, will often be
given generous support, and fans will far more readily police and
encourage "fair" uses of their work than the law will.

> The current copyright law may not be perfect, but it IS the law, and
> it DOES protect the artists.

I share with Bill Patry the conviction that copyright law has a future,
and that it can be part of the solution. The question is, who should it
protect the artist from? There's a big concern right now that the
present system is protecting business interests at the expense of both
the public and new creators, rather than protecting the interests of the
public and of creators against exploitation by business.

> The changes to the entire system that would need to be made to convert
> to a free system while maintaining a reliable income stream to the
> artists are so monumental as to be quite impossible, in my opinion.
> But, as I have said before, take your shot. Devise such a system, and
> see if you can get people on board.

I don't think they are so monumental -- the main restructuring that
needs to take place is to recognize that markets based on artificial
scarcity are a dubious basis on which to fund creative work. Permit
non-commercial copying, and place a levy on the points where commercial
exploitation takes place -- whether it's sale and distribution of
physical media (print books or sheet music, discs, etc.), public
performance, whatever.

Trust in the experience of publishers like O'Reilly who publish some
books under regular copyright conditions and others under copyright
licences which explicitly permit the reader to place them under the
photocopier or redistribute electronic copies. They estimate that they
do not lose sales in the process, and they gain a lot of kudos, free
publicity and brand loyalty.

Trust also in the experience of online music stores like iTunes who have
found that people are willing and keen to pay -- and pay a premium --
for audio files that do not come encumbered with DRM. As Alex Brash
pointed out, it's trivial to copy those files -- yet iTunes runs a
profitable business.

Trust in history -- the US publishers who paid royalties to British
authors despite the fact that they were under no obligation to do so,
British copyrights not having any legal standing in 19th-century America.

Trust in people, in other words, and their inherent sense of fairness.
Give them easy channels by which to purchase easy-to-use copies of
intellectual works. Give them transparency in understanding how money
gets from them to creative artists. Give them the freedom to share, and
the trust to employ that freedom wisely -- you will be surprised at how
much they will repay that trust.

DON'T trust in the kind of power-hungry organizations who will prevent
small venues from hosting performances of original songs by unsigned
bands on the grounds that they _might_ also sing a cover song:
http://techdirt.com/articles/20100518/2341299481.shtml

... and recognize the disturbing powers of censorship and technical and
economic control that are arriving with recent copyright-related
legislation. Because that's ultimately the question at stake: is
intellectual work meant to be a shared public realm in which we are
citizens and active participants, or is it meant to be a set of private
estates of which we can be at best temporary tenants operating on the
landlords' terms?

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