The Logic Off Topic list

Dennis Gunn said:
>It will be interesting to see how the mp3 revolution will play out.
>I think the people trying to put that Genie back in the bottle are
>deluding themselves to the point of absurdity.

Agreed.

Joeri Vankeirsbilck said:
>While it [Napster et al] is a problem in the short term, it's all a matter 
>of time
>before the industry has "sued them all". ;-)
Possible, but I don't really think it's the way.

Joeri also said:
>I'm convinced it's possible to get down illegal downloading to 10% or
>so, just like real world pirating.
10% is still a lot!!

>But it'll take many more years...
>which is a good thing because the industry's alternatives aren't ready
>yet either.
I think 'alternatives' is really the point here.


Yoonchi wrote:
>So now record companies are trying to cheat on the artists even more?
>It looks like robbing to me. After that quote of Elton John on how
>companies try to suck up the music market, I think it's time for
>another punk era, :-). I'll distribute my own music, thank you.
>What do you guys and girl think?





My own feeling is that eventually there will have to be a new paradigm for 
the sale and distribution of music.

Copyright is a fluid concept. It has not always existed. It was invented 
for two main reasons: (1) was to protect consumers; (2) to overturn censorship.

Reason (1) is important because the biz is currently trying to protect 
itself rather than thinking about the consumer. To be more accurate, record 
companies are trying to protect their interests.

Personally, I don't think there's going to be any legislative will for 
copyright issues unless whatever is being done is 'popular' -- i.e. seen to 
be in the consumer's interests. It must be seen to be protecting not only 
artists, but what consumers have -- and it protects artists and authors 
because doing so is in the long-term in the consumers interests. So it 
seems to me that there's not really any way around acknowledging what 
consumers currently have as a de facto matter: that mp3 gives them the 
right to listen to music whenever THEY want and in a readily accessible 
form. As Dennis rightly said, there's simply no putting that genie back in 
the bottle and IMO it's foolish to try.

So how do we protect what consumers have got while allowing composers to 
earn a living?

Well ... I think it helps to go back to the intent of the original 
copyright laws, and to bear in mind how things were at that time.

I am not a lawyer or an expert in the history of intellectual property, but 
my understanding of the situation is as follows. If there is something 
factually inaccurate I'd be grateful if someone corrected it!!!

The basis of most copyright law (at least, in the West) was set out in 1710 
with the Statute of Anne which was passed by the British Parliament. The 
Statue of Anne broke the monopoly on publishing held by the "Worshipful 
Company of Stationers' and Newspaper Makers".
http://www.stationers.org/
This was basically an organization of booksellers. Importantly, it was 
pretty much owned and controller by the British Crown. Thus the Stationers 
were protected from outside competition -- much like the company or 
collective record companies are today.

One thing the Statute of Anne did by instituting copyright was create 'the 
public domain'. This really hurt the Stationers because one of their 
primary methods of controlling books and publishing was to set rules about 
who could and who could not publish what material. They alone could decide 
what was an infringement of their rights to copy and what was not. 
Basically, if you were not a member of this particular Guild then you 
pretty much couldn't publish anything at all because it what was 
unspecified what was free to be openly published and what was not. Pretty 
much, therefore, a closed shop.

Once the Statute had been passed, however, the only way to create or 
acquire a copyright was to produce a NEW work. Nothing that had already 
been printed was any longer protected so Guild members could not cry foul 
and had to put up with the free printing and publishing of works and books. 
That's to say, thanks to the Statute any book publisher -- whether a Guild 
member or not -- had the right to publish anything deemed in the public 
domain. Non-Stationer book publishers and sellers could now compete with 
Stationer ones on equal terms, and without fear of getting fined or put out 
of business. This, obviously, protected consumers because suddenly all book 
publishers were competing to produce non-protected or non-copyrighted 
works. Another thing that happened is that they were all also now competing 
on equal terms and with each other to find new authors who were writing new 
books. It was up to a publisher to decide whether or not that book was 
worth publishing and placing before the general public, and they and their 
authors were automatically protected whether, once again, they were Guild 
members of not.

The consumer was now being protected by copyright because the length of 
copyright was now restricted. After a certain period noone anywhere could 
any longer claim that they -- and only they -- had the right to publish a 
certain work. The benefit to consumers was tremendous.

However, whether or not the Statute of Anne was beneficial to authors was 
another matter. In point of fact, the benefit to authors was pretty minimal 
then, and has really remained pretty minimal if judged in terms of how the 
financial rewards of publishing (music and books) are divided up. There was 
now only one way an author or composer could be recompensed. He or she had 
to find a publisher. He or she had to assign their newly created work to 
that publisher. And then he or she had to leave it to the publisher to 
distribute that work to the public for a fee of which they got, in return, 
a proportion. So from the consumers point of view, until the Statute had 
been passed publishers had been running rampant with virtually no 
restrictions on what they could publish, what claims they could make etc. 
Also .... publishers had not been greatly interested in "new works" because 
this inevitably involved having to recompense some author or another..

__________________________
For anybody interested, the preamble to the Statute of Anne reads as follows:
"An act for the encouragement of learning, by vesting the copies of printed 
books in the authors or purchasers of such copies, during the times therein 
mentioned." "Whereas printers, booksellers, and other persons have of late 
frequently taken the liberty of printing, reprinting, and publishing, or 
causing to be printed, reprinted, and published, books and other writings, 
without the consent of the authors or proprietors of such books and 
writings, to their very great detriment, and too often to the ruin of them 
and their families: for preventing therefore such practices for the future, 
and for the encouragement of learned men to compose and write useful books; 
may it please your Majesty, that it may be enacted, and be it enacted by 
the Queen's most excellent majesty, by and with the advice and consent of 
the lords spiritual and temporal, and commons, in this present parliament 
assembled, and by the authority of the same; etc etc etc
___________________________



The other important benefit of the Statute of Anne was that it put an end 
to censorship. This is because it removed, from the Worshipful Company of 
Stationers' the right to "find and destroy" all books that the Company (and 
therefore the Crown) found to be "seditious, heretical, and schismatical". 
Well ... this could be pretty much anything the Crown didn't like, such as 
criticism of the Crown. With the Statute, however, the Company could no 
longer enforce anything because individual booksellers could now print and 
publish what they wanted. Crown and government control therefore largely 
dissipated.

In the 300 or so years since the Statute was passed the concept of 
copyright has been amended and extended and has also had to face the 
problem of changing technology. Which is pretty much the case today.

Seems to me that the 'problem' with mp3 is not protecting the rights of 
authors, but rather the claim of record companies that they and they alone 
can adequately protect the rights of music creators. This seems to me to be 
an extremely dubious claim to say the least, because there are other 
methods of distributing music.

IMO, some time very soon the concept of 'hard copy' in music (CD's, etc) 
will have to give way to the concept of 'flow' as a viable way to collect 
revenues from music. In my view, the 'flow' concept already exists. It 
seems to me that this is how many music rights organizations already operate.

As an example, the Performing Rights Society (based in London) charges the 
BBC, British radio stations, TV stations and the like a yearly fee. For 
payment of that yearly fee those broadcasting organizations have rights to 
a flow of music. This music has been produced by the members of the PRS, 
and the PRS has negotiated a fee whose value has been arbitrated largely by 
what the market will bear, and that occasionally involves litigation or 
else discussions in e.g. the House of Commons. Nevertheless, there is a fee.

Clubs, theatres, venues and the like all also pay a yearly licence fee for 
the right to use, on their premises, the music of the members of rights 
organizations. All such groups are then REQUIRED to keep a tally of exactly 
what they play, and when. The revenue stream gathered by the PRS and other 
such bodies is then distributed amongst the members according to a points 
scheme based largely on the returns provided of what has been played.

Notice that it's a yearly fee that's paid. And although a yearly fee is 
paid, neither the PRS nor the broadcasting organizations stipulate, at the 
time the contract is signed, the precise details of the music that is to be 
played. The BBC etc can play what they like. It's just music -- but they 
must provide a return, at year's end, of what they decided to play. It 
works similarly with the fees charged to clubs etc.

So ... all that needs to happen, I think, is for this concept of a "flow" 
of music to be extended out into other areas -- and ones that are likely to 
cover the mp3 "problem".

Imagine, for example, that you enroll in a fitness club -- or else that you 
stay overnight in a hotel. In order to make itself more attractive to its 
members, that club, hotel, or whatever has negotiated a contract with the 
group of Music Providers A, B, C ... M, N and O. What those Music Providers 
do is give that club or hotel access to a database of songs that is 
uploaded on a regular basis to some servers on the club's premises. Each 
Provider could, for example, specialize in provisioning a particular genre 
(country and western, jazz etc). Anything from which they feel they can 
make a living. As a member or guest of that hotel or club, one of the 
rights I have is to download any songs I feel like off their servers onto, 
for example, my mp3 player. I have paid for this by being a member of that 
club ... which in its turn has paid a Provisioner for access to those songs.

I could also enroll with a specialist Internet Music Provisioner which 
basically again gives me the right to download any songs I like.

Providers and Provisioners would then negotiate contracts with whatever 
artists, or else artists rights organizations, that they felt that they 
could sell. For example, if I make jazz music, then I could enroll with 
Jazz Creators Anonymous ... which would then, possibly, provide music for 
any Music Provisioners that approached it. A fee is settled ... of which I 
get a proportion. Each Provisioner and/or Creators Group would then 
recompense those artists whose music had been downloaded, most likely as a 
proportion of the fees collected.

So ... what is being provided is access to music ... and it is an access 
that is quite independent of whether or not it has even been pressed onto a 
CD -- which is the sole basis on which record companies operate. Just like 
the PRS is a completely independent entity from PPL with PPL (Phonographic 
Performance Ltd) making money from the fact that the most common method of 
broadcasting music over the radio and TV is to play the relevant CD. Record 
companies, obviously, get the money from PPL, and some of that money again 
goes to the artists. However, in the case of a live concert, for example, 
or the broadcasting of some obscure opera that is as yet unsigned, PRS 
STILL collects money while PPL does not because there is no recorded 
version. Whether or not PPL collects money ultimately depends on which 
version of which song a band may be playing and on the nature of their 
contract with their record company. But it is not quite the given that 
record companies like to make out.

Record shops would not be entirely redundant, because, in the same kind of 
way, they could negotiate as they do now to provide music in hard copy 
form. Its simply that the exclusivity they currently have would just have 
to go. If record shops did very little business then people are obviously 
getting their music elsewhere and in another form.

Obviously, if I am a rapper, I would try to track down every Rap 
Provisioners I could find and persuade them to offer my material as a part 
of their music stream. I would not have to exclusively assign myself to any 
one "stream". Popular artists would, for example, be able to position 
themselves across several different streams for each stream would probably 
try to find a niche market for itself by focussing on some city; some 
demographic; whatever the Provisioners felt was their strong point. If my 
music is part country, part Jazz, part Indian, then I could try placing 
myself with provisioners specializing in as many of these as I want.



As a consumer, I would always be on the like out for a Provisioning Service 
that service my needs in that it would allow me to download 'hot new music' 
onto either my hard drive or onto my portable player whenever I wanted. 
Whether or not e.g. clubs or universities and the like charged their 
customers for the music they were providing would be entirely up to them 
according as to what they thought the market would bear. Radio stations do 
not exactly charge for playing music ... although they do have to pay to 
play. They make their living from advertising, which they can do because 
they can deliver an audience to those who want to sell their products. E.g. 
in order to make itself attractive and competitive, a gym might allow its 
members to download a variety of music for 'nothing' because it was 
included in the membership subs.

No way to put the genie back in the bottle. I also think that it would be a 
lot more constructive for the music industry to come up with proposals that 
demonstrate some kind of benefit for the consumer instead of being narrowly 
focussed on its own self-interests, particularly when it's clear that the 
public is not very sympathetic on this issue. Personally, I do not see the 
benefit to the consumer of the present squabble over mp3 files and e.g. the 
attempt to create copy proof CD's. Record companies are -- rightly -- 
creating merry hell because an illegal COPY has been made. So ... remove 
the copying issue. So ... let people pay for the right to hear the music of 
their choice in the manner of their choice. It ain't all on CD. Point is 
... people can only come by music if someone PROVIDES it to them. 
Therefore, charge the providers. Charge them a yearly or monthly or 
whatever 'flow' fee.



In essence, and to partly answer Dennis Gunn's and Yoonchi's questions, I 
think this will eventually have to be done by artists. I think that only 
artists can fight record companies, get their contracts re-interpreted 
under law, and then set up new means of distribution for music that still 
respect their rights as composers and recognize their creative endeavours. 
These are ARTISTS' rights that the record companies think they have. They 
only become record company rights when record companies sign up artists. 
Artists can give consumers what they want -- which is basically a much more 
free and ready access to music then they are currently getting from record 
companies. Note that -- IMO, anyway -- it's record companies who are 
claiming to best represent artists' interests. Question: is it possible for 
there to be music without record companies. In my view, yes. Question: is 
it possible for there to be music without creators and players? In my view, 
no. Therefore, record companies are wrong if they pretend that they are 
somehow 'important' or 'vital'.

Frankly, I don't see record companies moving on this matter in a  way that 
is in the long-term beneficial to CONSUMERS because, frankly, what 
consumers seem to want is anathema to what record companies want. Consumers 
seem to want wider access to music -- and without having to buy CD's or 
music is any other solid form to get it. But that is the way that record 
companies survive.

So ... give consumers what they want. Give them CD-less music. Let them 
download music wherever and whenever they want onto whatever hardware 
player they like. But ... they have to download somehow and somewhere. And 
... to get their hands on that, they have to come to artists. Let them pay 
there.

Anyway ... those are my thoughts on the matter as they at present stand. 
Sorry to have written at such length.

But then hay ... you've all got delete buttons, haven't you!!

Kool Musick
Keep Musick Kool


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