Tuesday, November 14, 2006

Release the Music debate

Yesterday evening, at the Conway Hall in London, took place the debate about Copyright term extension for sound recordings organized by the Open Rights Group, to which I went with students of my The Law and the Media class of the British American College of London.
The debate was preceded by a keynote talk by Professor Jonathan Zittrain, Chair in Internet Governance and Regulation at Oxford University, who gave a brief introduction about intellectual property rights in general and some insights into copyright in particular. He then, went into analysing certain aspects of copyright term extension and made reference to his participation in the failed Eldred v Ashcroft. In that point Professor Zittrain referred, again, to the requirement imposed by the US Constitution to limit the time of protection for intellectual creations (limited times was the only phrase of Article 1 Section 8 that he highlighted in red), but it can be argued that the argument then and now should be that any intellectual property right extension, both in time and coverage, should first show that promotes “the progress of Science and Useful arts”. The cases and the debates still are lost because the focus is on the wrong place: the burden should be on those proposing the extension to show that such a change will benefit society.
After a brief recess the debate started with four presentations of five minutes each, and the fire was opened by Richard Mollet, Director of Public Affairs of the BPI, who began pointing out that the campaign(s) against copyright term extension for sound recording have much of FUD themselves. He made a fair point about the ending paragraph of the “Release the Music” brief, which read that the referred extension “could sentence our cultural heritage to a commercial vacuum, preventing future artists from accessing, and being inspired by, a golden age of recorded sound”. Richard easily showed that current and future artists will access and be inspired by many songs that are under copyright and that that might always be the case. He went on with putting forward the idea that artists deserved to profits from their recordings at least during their live-times and also, making the point that the current and future knowledge economy was about intellectual property rights, there was a need to harmonize the protection terms with other countries.
His argument had an intrinsic contradiction and during the question time I tried to make that point by asking him what BPI's position really was, but even when I was the first person to raise the hand for questions it seemed that the chair never saw me, so I couldn’t. What Mr Mollet was arguing was untenable; he first kept referring to intellectual property rights as some sort of inherent right that artists had for the sole fact of being artists and that their creations were really property, ignoring that such rights exist only because the stated decided to grant them with a very specific purpose and that the “property” in intellectual property is a legal fiction designed to, by being able to transfer it and profit from it, fulfil the original purpose of benefiting society. So, if, as he said, in the 50s and 60s England lived the golden age of music without having rights to sound recording for more than 50 years, his own evidence showed that such an extension was not necessary to fulfil the social goal of encouraging creativity. If, on the other hand, he was really proposing that copyright should be a human right, well, in that case he would probably get more support, but he would be implying that BPI supports the recognition of moral rights in UK and that all those rights should cease with the dead of the artist (without even going into the impossibility of transferring many of those rights to the companies that are part of BPI). Finally, if he really meant that BPI supports full harmonization of global intellectual property rights, that would be a good news to many developing countries that were waiting to have somebody like BPI adhering to their pleas of having international recognition to an array of indigenous rights and rights over cultural heritage, which are already recognized in some developed countries as New Zealand.
The second speaker was Dave Rowntree, drummer of Blur and owner of Nanomation, who repeated his know stance pro sharing of digital music. He first recalled the series of blunders that had made the music industry not a very liked industry by the public to then correctly point out to the public interest aspects of copyright and that the interest of the recording industry were not necessarily those of the music industry. He also reaffirmed the idea that giving him more rights over the music that he had already recorded would not necessary led him to produce more music. His arguments and presence were important to show what some musicians position was in the matter but it seemed that confronted with people whose full time job were to convince people of the niceties of their companies ideas, like Richard Mollet, he would not convince many unconvinced (yesterday he was preaching to the already converted), which could be one of the reasons that Eldred v Ashcroft was lost (being right is not enough).
The third speaker was Martin Talbot, editor of Music Week, who, after acknowledging the blunders made by the recording industry (some old anti-piracy campaigns, DRM, etc), he explained why his magazine had started the campaign towards copyright extension beyond 50 years through a petition that, later explained was signed by 2000 people or members of the music industry associations (I didn’t get that very clear). His brief exposition also mentioned that it was not true that the extension was been sought only by a handful of big record companies and gave some numbers about the number of small record labels that would benefit from it. He kept referring to the concept of ownership of the creation and the rights that such a ownership should entitle, and gave some examples of people that would benefit from the proposed extension. Still, the main problem was the assumption of a legal title different from the one conferred by law. Even if the Copyright, Designs and Patents Act 1988 refers to both property right and ownership, both the courts and the doctrine have agreed that the title deserves certain qualifications, which seemed to be absent from Mr Talbot’s analysis.
The panel was closed by Caroline Wilson, lecturer at the Southampton School of Law, who, as always, delivered a solid argument explaining the lack of relation between extending the term for copyright on sound recording and the fulfilment of the objectives of copyright law, vg benefiting society. She went into some detail (as much as five minutes allowed) on the origins and principles guiding the apportion of intellectual property rights for literary and musical creations, to show why the proposed extension not only would not satisfy the mentioned objectives but it certainly contradict them. During the question time Caroline had the opportunity to rebate some of the economic analysis presented by those in favour of the extension and she ended the night by affirming, as I wanted to do, that if the BPI and the music industry was so concerned about the rights of musicians, they should support the incorporation of moral rights into UK law.
So, in conclusion, the presentations in favour of the extension had the usual sophistic analysis that lead to predetermined conclusions, but those against it still struggled with the fact that being right is not enough to win in the public arena, or in court. However, when trying to emulate the industry’s strategies, those favouring less copyright and more creativity have to be careful to not put forward statements that easily proven incorrect or be shown to be incorrect, because those in the other side are specialists in PR and public engagements, which take us back to Eldred v Ashcroft. Being right was not enough; US Supreme Court litigation needed a strategy and a skill that you cannot learn in the classroom or clerking for a US Supreme Court judge (the example can be found in the advice that the current Chief Justice of United States gave to a gay’s organization group before they appeared in the US Supreme Court).

1 comment:

Suw said...

Fernando, thanks for such a great write up!

I have to, if I may, disagree with Richard Mollet's disagreement with our final paragraph. Being in copyright does not guarantee that people have access to music. Contrary to what Mr Mollet may imply, not all recorded music which is currently in copyright is also in print and accessible. And culturally, it's important that we don't end up in a situation where the only music we can access from 40 or 50 years ago is the stuff that is still commercially successful. If term was extended, it would become even more serious because there would be no incentive to release the obscure or niche recordings that can't make any/enough money. It's not just The Beatles and Elvis who are part of that golden age, but all the stuff that we can't easily name because no one plays it on the radio anymore!

I will agree that we might have phrased it better, however, but I believe our point still stands.