Issue
6 Volume 1
June 2005
June 2005|
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Issue
6 Volume 1
June 2005 |
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Who owns IP? Musicians get sidelined By David James We are, of course, talking of musicians. In the ferocious battle being waged in the Sydney courts over who owns the rights to musical intellectual property, scant attention is being given to the actual creators of said intellectual property. The file sharers claim to have a model that will benefit musicians, but this is at best an afterthought. The recording industry claims to protect the interests of musicians, which is no thought at all. It is just a lie.
In one sense, this is in keeping with the English tradition of intellectual property (IP). The original IP legal cases were fought almost four centuries ago over editions of the plays of William Shakespeare, and we can be sure no royalties went either to Shakespeare (he was dead at the time) or his family (they may as well have been dead). It is an emphasis that continues to this day. The producers of the artefact, not the art, are considered to possess all the rights. That this went against the original thrust of the philosopher John Locke's argument (Locke was the creator of the phrase intellectual property, for which he received no royalties) has long been forgotten. Locke thought that every man "is entitled to the fruits of his own labour", including mental labour. In the English legal system this has been turned on its head, at least in the arts. No-one is entitled to the fruits of their own labour unless they also made the artefact. In music, the person can actually create profitable fruits yet finish up owing the producer and distributor of the artefact. It is thus, from a musicians' point of view, no great problem if the
system starts to fail. Globalisation looks set to destroy intellectual
property as a legally enforceable notion. Business commentator Alan Kohler
recently wrote: Because file sharing is so widespread, and global, it is both too big to stamp out and impossible to prosecute. In which jurisdiction, which country, should the stamping out take place? Should it be prosecuted in the country it is used, the country in which it was first created, or the country where the service provider is located? Take your pick.
What is clear is that the beneficiaries, according to Kohler, are telcos: "There are real difficulties and differences culturally. There is a cultural difference to the question of imitation. We (in English-speaking countries) have a fairly ambivalent attitude to imitation. There is a fine line between permitted imitation and unauthorised imitation. Some cultures regard imitation frankly, in some Asian cultures, as not being a pejorative thing, as not being necessarily something they shouldn't do."
Gurry says there are differences between the common law systems of the English-speaking countries and the civil law systems of continental Europe and European colonies. "We see some very real differences between North America and Europe. Two examples. One is in the film industry where the way in which it is structured in Hollywood is that the producer has all the rights: all of the actors rights and musicians' rights in respect of a film. And that system is practised so that the producer is able to market the film world wide without going through the process of getting all the permissions in each case. "That is a system that is anathema to some of the civil law countries in Europe. And indeed we failed in the year 2000 to adapt the rights of actors basically to the internet age on this ground. We couldn't bridge the ground on that particular issue. "Another example is moral rights which are relatively recent in common law (English-speaking) countries. It springs out of the conception of the civil law countries that a work, an artistic work is an expression of personality of the creator and there is some inalienable rights about that. Whereas in common law countries there tends to be a much more economic notion of copyrights: you can alienate everything. "You see the civil law approach in things like the right for an artist to get a royalty on every subsequent sale of the work. So when it becomes a very famous work and gets traded for a hundred thousand times what it was sold originally, they (the original artists) get continuing value. That is a notion that is very new in the common law countries and hasn't been adopted." Gurry's observation that in English-speaking countries the creators
have no inalienable rights should come as no surprise to musicians in
Australia who have dealt with recording companies. The portability of
musical intellectual property - a system in which Michael Jackson can
"own" the songs of the Beatles, and John Fogarty no longer owns
what he produced for Credence Clearwater Revival - has been a key to the
industry in the United States and United Kingdom. The greater threat to the industry is what is called "copyleft". As the name implies, this is the opposite of copyright. Companies do not charge for copyright, although they do set conditions on usage, from which they hope to make a profit. The most prominent example is the battle between the operating system Linux, which is free, and Microsoft's, which is not. Linux is starting to win. Copyleft products become valuable to the creator through the way they are used. The product is free to the consumer, and the money is made from adding value - either to customers or advertisers - when the consumer goes on line. In a sense, that is what has already happened in the music industry. The battle with Kazaa and its ilk is being waged over who buys CDs and who should be allowed to download music files on to a computer. But in a deeper sense it is also about who owns the intellectual property. The internet market has decided that the answer is everyone, and no-one. In a market system, such a powerful consumer vote will be near impossible to reverse. For music enterprises to survive, they should start paying a lot of attention to the economics of copyleft.
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Smegma gets snatched, smooched and smote - a comico-tragedy in three and a bit parts Part the First And in tragic news (that seems to have slipped off even the back pages thanks to the untimely death of that Poop dude who I think has already been dead for quite some time), some really cheeky f**king bastard stole Jimmy's beloved Siggy Cardust(a.k.a. 1983 Mitsubishi Sigma sedan, silver/grey in colour, registration RKR 355, a.k.a. The Smegma). A similar vehicle...
ARRRFGGH!!! The cunce stole the flamin geetar!
We hoped and prayed to the Poop that the Smeg be found with most of that
familiar Part the Second A sleek silvery-grey machine was driving along Church Street. It pulled
up at the lights. Matty and colleagues stared at each other in disbelief.
It looked much too clean to be THE Smegma, but, they surmised, it was
possible that the brazen thief had given it a wash to enable a clean getaway. But by this time The Smegma had disappeared over the hill and it was much too late to give chase (and probably unsafely wet on the floor from all the tears of laughter...), so a call was made to the Men In Blue who said they would "put a couple of units out" (translation: "does anyone else want something from Macca's?"). And nothing more was heard nor sighted since. Part the Third It's true! The Smegma hath returned! On Tuesday morning, 8:08 am (policemen obviously don't have any respect for Jimmy's sleeping schedule), Jimmy got rung up by the Men in Blue, who'd located his beloved Siggy Cardust. Apparently they were on their way back from getting takeaway from Macca's and were just about to hoe into their Sausage n'Egg McMuffins when they were distracted by a smell, and a silvery-grey glinting. Unbeknownst to them, it was that "Jimmy" aroma and Smegma shininess. So Jimmy went to recover his old mate from down in the Docklands. He kissed it, smooched it, and drove home happily. Funnily, these kindhearted oxygen-thieving bumpilots did some modifications...
The silly wangdoodles also left a Mitsubishi Sigma vehicle manual in
the car (see? they'd been fixing stuff!) with an address written on it.
The Men in Blue are investigating... Coda (The Twist, and why it is a tragedy, or young Jimmy loses faith in a benevolent universe) On Friday arvo, Siggy Cardust slammed into the back of a taxi. I'm not joking.
You can stick your karma right up yer khyber. There is no god, law or purpose. Just Clinkers versus the world. Commemororative shards of headlight are available for $1000 each. Here's cheers and tears. Ahh, fock it. Here's beers.
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The
Sydney court battle between peer to peer file sharing company Kazaa and
representatives of the music industry has been notable for its failure
to mention a certain group of people. A group who, one might be forgiven
for thinking, are vitally important. A group who might even be considered
the very ones most worthy of legal protection. 
