Klarinet Archive - Posting 000206.txt from 2010/07

From: Bill Hausmann <bhausmann1@-----.net>
Subj: Re: [kl] Sheet music copyright
Date: Mon, 12 Jul 2010 23:16:49 -0400

At 11:41 AM 7/12/2010, you wrote:
>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.

Without which there would, in this case, be no market at all. The
market value would be the price of each copy: $0.00. As you yourself
state below.

> > 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.)

No injury to "society," but plenty to the author/composer.

>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".

Not so much to "enhance" as to "preserve." The company will continue
to print more as long as there is enough demand to make it
profitable, so no scarcity actually exists until the demand has waned
to insignificance.

>"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.

The lack of demand comes first. No other publisher would pick up a
work that has run its course, so the author would be unable to secure
such a deal in any case.

>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.

Yes, indeed they DO serve the publishing company. The company,
unlike the composer, has invested its capital in printing costs,
warehousing, promotion, etc.

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

Things that have lost copyright protection, if they ever had it, many
years ago. I encourage people to copy them freely and use them for
inspiration.

> >> 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.

As I have said, they are perfectly within their rights to do so, I
will be more than willing to download their works, etc. But if one
chooses NOT to distribute in that way, it is his right, which may not
legally be usurped by anyone else.

>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.

Now that's just silly.

>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.)

It works for software, maybe, when software is some sort of hobby, or
a doorway to some other product. If your goal is developing
software, rather than earning a living, it's a swell idea. Most of
my musical performing is done without pay, and that is fine with
me. I do not depend upon it for my livelihood. It is a hobby. But
I retain the right to perform for a price if I so chose.

> > 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.

Well, yes it is, actually, since there is no other viable system in
place or even reasonably imaginable.

> > 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.

So stealing a little is not as bad as stealing a lot?

>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.

Kids wanting things their parents don't want them to have is as old
as time itself. Changing the copyright law will not alter that.

>Bear in mind that, had the composer in question actually been in any
>kind of financial difficulty, her attitude might have been different.

But it is irrelevant. Whether you are stealing from a rich guy or a
poor guy does not alter the fact of the theft. That is where she is
missing the boat entirely. Chalk it up to her youth and inexperience.

>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.

SOME people are doing well -- the big stars. But how much are even
THEY losing? How much do they have to jack up the concert ticket
prices to cover the loss?

>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.

Copyright law is blind to "need" and it should be. And I don't buy
your "lollypops and rainbows" view of the marketplace. Nobody is
going to look at the artist's financial statement before making a
copy. (On the other hand, you may insert here your own joke about
the irony of discussing both Madonna AND "intellectual" property in
the same posting.)

> > 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 publishers and artists are jointly protected against the copiers,
or at least that is the intent.

> > 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.

The system collapses under the weight of the free copies. Even if a
few are paid for, it will not be enough. Most sheet music sales are
to students, not for commercial ventures.

>...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

ASCAP is a whole other kettle of fish, but another way artists can
make a buck, as in royalties for playing a song on the radio. They
do get a little crazy sometimes, though.

>... 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.

Your fears of censorship are overblown. Copyright does not restrict
access to works (except in purely financial terms, like the teenager
without a credit card, who could still pay cash in a store). It
actually helps to insure that future works will be created by people
who have the financial means to do so. And that publishers will be
rewarded for their faith in the creators. As long as those folks are
taken care of, works will be produced and published, and only
heavy-handed government-imposed censorship will stop them. (Well,
OK, given the current administration, maybe your fears are grounded after all!)

Bill Hausmann

If you have to mic a saxophone, the rest of the band is TOO LOUD!

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