Copyright Down and to the Left

Image by Granger Davis

By Mike Conway

The creative landscape is changing. Technologies like Pro Tools, the iPod, and peer-to-peer networks have become mainstream in the digital age, creating a wild frontier of sorts in music. Rather than struggling to break into radio, musicians can find a mass audience without a major record deal. These technologies are fostering the rise of “semiotic democracy”—where more and more people are no longer passive consumers of mass media, but active participants in creating culture.

The music industry is part of a waning guard, and it fears it will be eclipsed by this new landscape. But the industry refuses to simply take a bow, or even roll with these changes. Instead, it has released the hounds of law onto the backbone of semiotic democracy: the internet.

The Recording Industry Association of America (RIAA) is currently policing digital networks that distribute copyrighted material for free; and it is dead serious. It went after a deceased woman for downloading songs in her twilight years. The RIAA also has a case before the Supreme Court in an attempt to quash peer-to-peer networks. Just like 9/11 paved the way for the PATRIOT Act to “adjust” civil liberties, the RIAA is enforcing copyright infringement to tame the new creative frontier.

Sadly, one of the heaviest influences on copyright law is the lobbying power of the “creative” industries. William Fisher III is a professor at Harvard Law School and a leading scholar of copyright law. He attributes some of the major changes in copyright to “concentrations of economic power.” The life of a copyright is a classic example. In 1998, the copyright for Mickey Mouse was about to expire, making the Disney icon public property. Dr. Fisher says “Disney would have lost a lot of licensing revenue if Mickey Mouse had fallen into the public domain. [So] Disney and many other organizations prevailed upon Congress to extend copyright” from 50 to 70 years.

The RIAA qualifies copyright in lofty terms. Their website states that “to artists, ‘copyright’ means the chance to hone their craft, experiment, create, and thrive. It is a vital right, and over the centuries artists have fought to preserve that right.” But now, in the 21st century, copyright can also encumber artists in their creative process. Putting together mixtapes or samples continues to be tricky for a number of reasons. Dr. Fisher gives two. He says “sampling is one of those zones where the power of a copyright owner gets in the way of successive layers of creativity.” Secondly, Fisher says, “there doesn’t exist a comprehensive copyright registry; so even if you’re perfectly willing to pay for permission to use other people’s works creatively, you can’t find the owner.” The result, according to Dr. Fisher, is that copyright law “is closing off an entire source of new works [and] depriving people of the creative experience.” So despite what the RIAA says, copyright and creativity have yet to shake hands.

But the current copyright regime fits neatly into their ongoing litigation against certain peer-to-peers. Mitch Bainwol, the RIAA’s chairman and CEO says free peer-to-peers follow a “parasitical business model” that “robs songwriters and recording artists of their livelihoods, stifles the careers of up-and-coming musicians, and threatens the jobs of tens of thousands of less celebrated people in the music industry.” And that argument holds a lot of water with many musicians, who believe that for art to have any continuity, artists should be compensated for their work.

But within the recording industry lie several common practices that are quite anti-artist. Work-for-hire and controlled composition clauses can snatch the cheese right from an artist’s mouth. Plus, the artist and the copyright owner are usually two different entities, and they are often at odds.

Copyright is never as simple as “once you create it, it’s all yours.” In any given recording, there are two copyrights: one for the song as it is composed by the artist(s), and another for the song as it is recorded. Many times, neither copyright is held by the artist, or at best he/she will hold a fraction of one, leaving the artist with little control over their own work. In 1998, Public Enemy posted free MP3s of their forthcoming remix Bring the Noise 2000 on their website. The recording label, PolyGram, had considerable share in the album, enough to sue PE and force them to remove their own songs from their official website. PolyGram’s copyright had been infringed.

In theory, the RIAA is right to stand up for the artist and the “thousands of less celebrated people in the industry.” But its legal crusade is as consoling to artists as a crying crocodile. After all, the recording industry is a business like any other; it will do everything in its power to sustain itself. It’s more likely that the industry’s fight on filesharing is about keeping its monopoly relevant than it is about stopping illegal downloading.

Instead of marching on the halls of high government and patrolling fledgling technologies, the recording industry can ensure its own relevancy by bringing justice into the music business. Espousing contracts that empower artists with more say over their legacies is a start. If the RIAA extols copyright as a guardian of creativity, they should develop an accessible database of copyrights to stimulate new forms of creativity. American culture has always been a product of the people. Now that technology and new media has caught up with the diversity of our voices, the industry should step back and listen.