Intellectual Property
Jul. 23rd, 2003 12:58 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
javasaurus For the most part this term applies to anything that you can copyright or patent. Such things are allowed for (though not required by) the Constitution (Article I, section 8), with the intent of encouraging progress and art by allowing those of creative spirit to profit from their efforts. I wholehearted agree with this idea.
One complaint regarding intellectual property involves prescription medicines. A drug company, after patenting a new drug substance, has 17 years to turn a profit before the generics are sold. A long time? Not really, once you realize that the first eight to ten years of that period will be spent testing the drug for safety and getting it approved for human use by the FDA. The testing is not cheap, and only about 1% of drug substances patented actually make it to market. The drug companies then have only a few years to reap a profit from their testing and research with which to fund future work. Without the few years of monopoly, the research drug companies would quickly cease, as would production of new drugs.
How many professional artists (writers, painters, music composers, etc.) would be able to continue in their profession if they didn’t get paid? Without copyright laws, a low-budget press could mass produce a novel and pocket the profit, the writer getting nothing for their untold hours of effort (a professional writer working full time on a average novel might complete it in about 3 to 4 months). In fact, without copyright laws, the publisher could make unapproved changes to the text, possibly alter the intent of the author, or even leave the author’s name off completely, so the author wouldn’t even get credit. That would leave little incentive for authors to even pick up their pens.
What it really comes down to, is that creators and publishers and consumers enter into contracts of purchase. When you buy a book or sound recording, you are bound by the copyright on it, which means that you cannot reproduce it (except in “fair use” circumstances, which generally exclude excuses like “it is too expensive to buy”). If you don’t like the limitations on the purchase, don’t buy the product. Computer software has gone further by adding another layer to copyright – the user license agreement, which is a more specific contract about what you can and cannot do with the software. Again, if you don’t like the contract, don’t buy the product. I guess copyright law is effectively a Congress-imposed end-user license agreement. Without it, we’d all be forced to sign contracts of intent every time we bought a book.
MP3 music files being swapped over the net: I’ve heard excuses like “the musicians actually benefit from swapping and the exposure it brings” or “they have so much money that it can’t hurt them – the music companies are being petty power giants” and others. However, it’s not about whether the musicians benefit, or whether the companies get money. It’s about the artist maintaining control of their work. If they want to let their songs get swapped, that’s fine. If they don’t like swapping, they should have the choice.
One complaint regarding intellectual property involves prescription medicines. A drug company, after patenting a new drug substance, has 17 years to turn a profit before the generics are sold. A long time? Not really, once you realize that the first eight to ten years of that period will be spent testing the drug for safety and getting it approved for human use by the FDA. The testing is not cheap, and only about 1% of drug substances patented actually make it to market. The drug companies then have only a few years to reap a profit from their testing and research with which to fund future work. Without the few years of monopoly, the research drug companies would quickly cease, as would production of new drugs.
How many professional artists (writers, painters, music composers, etc.) would be able to continue in their profession if they didn’t get paid? Without copyright laws, a low-budget press could mass produce a novel and pocket the profit, the writer getting nothing for their untold hours of effort (a professional writer working full time on a average novel might complete it in about 3 to 4 months). In fact, without copyright laws, the publisher could make unapproved changes to the text, possibly alter the intent of the author, or even leave the author’s name off completely, so the author wouldn’t even get credit. That would leave little incentive for authors to even pick up their pens.
What it really comes down to, is that creators and publishers and consumers enter into contracts of purchase. When you buy a book or sound recording, you are bound by the copyright on it, which means that you cannot reproduce it (except in “fair use” circumstances, which generally exclude excuses like “it is too expensive to buy”). If you don’t like the limitations on the purchase, don’t buy the product. Computer software has gone further by adding another layer to copyright – the user license agreement, which is a more specific contract about what you can and cannot do with the software. Again, if you don’t like the contract, don’t buy the product. I guess copyright law is effectively a Congress-imposed end-user license agreement. Without it, we’d all be forced to sign contracts of intent every time we bought a book.
MP3 music files being swapped over the net: I’ve heard excuses like “the musicians actually benefit from swapping and the exposure it brings” or “they have so much money that it can’t hurt them – the music companies are being petty power giants” and others. However, it’s not about whether the musicians benefit, or whether the companies get money. It’s about the artist maintaining control of their work. If they want to let their songs get swapped, that’s fine. If they don’t like swapping, they should have the choice.
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no subject
Date: 2003-07-23 11:03 am (UTC)The artist pays for the work, which the record label owns. This is slavery to the fullest I've ever seen in the 20th/21st century. (Hence, Prince's "SLAVE" face-mark he kept through the 90s).
Letting musicians whose work is owned by an RIAA label tell you file sharing will hurt them is like letting a black slave on a cotton farm in 1836 tell you that abolishing southern slavery will hurt him.
no subject
Date: 2003-07-23 12:02 pm (UTC)If the artist chooses to sell their copyright, that's fine with me. The savvy ones tend to get a good price, the naive tend to get screwed (and become "slaves") but that's a different issue.
Also, the issue of whether the artist is hurt by file sharing is not the issue. There is certainly too little data to do other than speculate on that issue anyway. The point I'm trying to make is that the copyright holder has the legal right to control reproduction of the product. To allow it to be otherwise impinges on the ability of creative minds to reap the benefits they have earned.
no subject
Date: 2003-07-23 12:56 pm (UTC)Copyright is the sound recording. Publishing right is the lyrics & music. Most RIAA records will assert both. You'll see the circled P right next to the circled C. The amazing thing is how this "standard industry practice" is so entrenched that record labels will assert that on the published CD even when it isn't correct. Many records from Europe on one label, when re-distributed by a different label in America, will have the copyright statement changed to the American label, even though they don't own the rights, having only licensed the distribution rights.
ASCAP is its own nightmare, the largest legal extortion racket in the world. ASCAP may claim that they give 86% of their earnings to the copyright holders, but 14% of 8 BILLION dollars income pays for a LOT of lawyers and lobbyists. Add to that the fact that when it comes to public performance, they collect three times. In the example of a clothing store in a mall that plays a local radio station, ASCAP collects 1) from the radio stations purchase of the CD, which like a rental DVD is more expensive than the store ones that radio stations can't legally play on the air; 2) from the radio station's own broadcast license, and finally 3) from the store itself as the final "public performance" space of that material.
To make matters worse, those collections from stores, restaurants, pubs, stadiums, et al, all placed in the "general fund" don't go to the copyright holders in a fair basis. An Irish pub may have a jukebox with nothing but traditional celtic music in it, but the money ASCAP collects from the pub goes into the general fund which is distributed based on one criteria only : Radio Airplay. All the money collected to "support the artists" of those celtic cds is actually lining the coffers of Britney Spears's record label.
Go read http://www.negativland.com/albini.html .
To quote Robert Fripp: "The history of the music industry is a history of exploitation and theft"; Fripp's take on the Albini article: "my problem with this work is that it paints the music industry in too positive a light."
no subject
Date: 2003-07-23 02:41 pm (UTC)The reason I started this was in support of copyright-holder control of duplication of the copyrighted work. I know that current copyright law has problems, and industry practices are not necessarily fair. But that doesn't mean the consumer has a right to make and distribute copies of music albums, text books, or paintings w/o permission of the (c) holder. Do you think the Pyrates Royal would be happy if I started handing out homemade copies of their CDs at RenFest? Not just a couple, but hundreds of them. And how would that be different from distributing their work on the web?
no subject
Date: 2003-07-23 02:43 pm (UTC)no subject
Date: 2003-07-23 12:07 pm (UTC)If the argument on sharing files is that then people can figure out what they want to buy, there are places (e.g. Borders, Tower, etc.) that will let you sample songs (either a few songs from the album or preferably a bit from each song on the album). That way you can make an informed choice on what to buy.
Copywrite ownership is interesting. If the artist sells the copywrite, that is their right. If the artist sells a license, that is their right. It is up to the artist to read the contract carefully and decide what to do.
Where the industry ticks me off is that if a 'known entity' has covered a lot of period pieces, it is assumed that all arrangements of those pieces are based on that groups work. For example, "Sellinger's Round" has been recorded by a few groups, if Cat&Fiddle were to record it, you would have to get permission to do so since your arrangement is obviously taken from [group name]. For some of the more common tunes; that is a risky assessment (though it could be 3rd or 23rd hand); for some of the rare ones ... it is also risky (what are the chances of Cat&Fiddle having heard a rendition of [obscure song]?
Just because Bear Necessities or Baltimore Consort specialize in a certain kind of music doesn't mean that they own all arrangements (and interpretations) of it. Not that they don't have good reason to believe that there is a lot of copying or 'inspiration' going around. Where do you draw the line on that (especially w/regard to older pieces).
Is the Bobs version of "Light My Fire" a backwards copy of PDQ Bach? Yes, I am sure they are paying rights for "Light My Fire" as a cover, but do they have to pay twice? If I were to get an electric guitar and do an acid rock version of "Simple Gifts" or "Messiah"; should I be paying rights to anyone?
There are many reasons to be annoyed with the record labels and RIAA et al., but I don't think this is one of them. If someone were to copy all of HP5 into the computer and offer it up for sharing, would that be OK? What is the difference?
no subject
Date: 2003-07-23 12:14 pm (UTC)28? That's 19th Century numbers
Date: 2003-07-23 12:39 pm (UTC)The copyright clause was written to support the artists and the generation of arts, not to have one artist's work support his decendents for 3 generations and beyond...
And though parody has been upheld as Fair Use, audio sampling has not, even though its really just an audio form of a collage something upheld as fair use for visual media like pictures and paintings.
DRM techniques are an afront on our Fair Use rights. With analog technology, I have the fair use right to transfer the audio between media-format (LP/CD to cassette, e.g.). With digital technology and DRM, the software says I can not, even though fair use says I should be allowed to...add to that the DMCA which says I can't write software to bypass the DRM, and you have a restriction on my rights in violation of the fair use clause as interpreted by the Supreme Court in 1975.
Re: Hmmm...
Date: 2003-07-23 01:55 pm (UTC)There's an oddball clause in "standard industry practice" called the right to first record. Its one that allows the copyright holder for a song to restrict who can be the first to record it. Its a very powerful thing, since the first recording of it also technically becomes the first arraingement of it, the one which (to ASCAP's eyes) all other arraingements are based upon.
After "first record" has been granted and exercised, permission is not required to record it again. Its a formality of politeness that most do ask permission first, but its not a requirement. Even if Coolio's people DID tell Al "no we don't want you to use Gangster's Paradise", there is nothing legal they could do unless Al either 1) didn't credit Coolio, et al., or 2) didn't pay his publishing company through ASCAP. The parody clause of fair use isn't even an issue. When performance rights are handled by ASCAP, almost anything can be recorded again as long as the money is agreed upon and paid up.
Nick Robertshaw granted first-record rights to Hellship to the Pyrates Royale. Technically and legally, that allows me to record my own version of it at any time, provided I pay Nick up front the "going rate" which is based on the # of cds being pressed and the # of separate titles on the disc. As a decent human being, I won't do that without Nick's approval and blessing, but its a legal right I have.
end part 1
Re: Hmmm...
Date: 2003-07-23 01:55 pm (UTC)Regarding the recording of public domain music, this is actually something long established by the classical music part of the industry, setting precedents the folk world have had to accept. Yes, either the first or the "most famous" (by whose judgement) version of a piece is the one for which most arrangements will be considered based on. It doesn't matter that I may not have heard so-n-so's version; ASCAP will assert that I have and that I'm lying when I say otherwise. ASCAP will win. Their lawyers are too good for my budget. Pony up the cash and don't worry about it.
However, "permission" is not required. As with right of first record, anybody can record something in the public domain. If an artists' publishing company asserts that its a cloned arrangement, they can sue to collect some (small) royalties, but nothing can stop you from making the record in the first place.
Its really more of an issue with songs than with tunes; tunes are usually too small to appear in the ASCAP radar until it comes to something like enforcing a performance space's broadcast license. For example, when Michigan's faire was trying to avoid the ASCAP tax by telling its performers to not play ASCAP protected material, Minstrocity would be restricted from playing Playfords recorded by Bare Necessities. Its not ASCAP leaning on Minstrocity, its ASCAP using both Minstrocity and Bare Necessities' material to lean on the faire management. ASCAP won't make Minstrocity pay BN because its too small to appear on their radar; its not worth the legal fight. Its only a tool to extract the real cash from the site itself. THAT's why ASCAP is an extortion racket.
The line is drawn by ASCAP; they really don't care if one album uses public domain material performed on some other artists' record regardless of the similarities in arrangements; the money they could grab from that is not worth the accounting hassle. They DO care when it comes to the larger moneys collected from sitewide licenses.
Final issue: performance rights. Performance rights are paid by the venue, not by the artist. The Bob's original album release that included Light My Fire required them to pay the Morrison estate and Doors publishers at a minimum; if they chose to credit PDQ Bach, then they paid Shikele's publishers as well. They don't have to pay them again when it comes to public performance. The venue itself already has a licence with ASCAP and BMI (and likely SECAN as well), which allows the venue to "perform" anything and everything without restriction. That's the money that goes into the "general fund" I discussed in another comment here.
MDRF pays the licenses, which is calculated based on attendence predictions and number of performers and stages (and each street section is a "stage" in those terms). Proportionally speaking, Carolyn quite possibly could be paying ASCAP more to have Cat&Fiddle than she pays us directly. Its just part of the overhead, just like an employee in a software company has overhead in the form of benefits, office space, computers, etc.
no subject
Date: 2003-07-23 08:45 pm (UTC)In fiction, let's take this analogy. I wrote a detective story about a wandering, hobo detective. It sells horrificly well. Later on, Jimbob writes a story about a hitchiking detective. Aha, I say. You stole my idea and I will sue you. I just might win. Never mind that my story is set in the USA while your's is set in England. Never mind that "murder mystery" is a genre.
Now, let's look at Harry Potter. In the world, there are many Harry Potter clones. Rowling's lawyers have done their best to sue such works out of existance. They bear some resemblance to Harry Potter, but in the way that any work of a similar genre will. The stories take place in different countries, with different characters, and even different times. That doesn't matter. They are considered "derivitive works", and can be blocked from publication.
I don't know what else I want to say. Must go sleep.