Suggestions for copyright reform, and reflections on music as service and product

I fully sympathize with Timothy B. Lee’s idea of bringing copyright back on track, even if I personally can’t see such a development as very likely. He is right to point out that legalization of non-commercial file sharing wouldn’t amount to a radical break when compared to 20th-century copyright principles governing the commercial exploitation of works. In fact, such a reform is maybe best described as a restoration.

The 1990s could have been the perfect time to put copyright law on a better footing, avoiding the current regulatory escalation. At that time, it was far a more open question whether a file transfer was akin to a unit sale, a broadcast, a public performance, or simply a private use which could (given its non-commercial character) be left outside enforcement, as Tim Lee reasonably proposes. Since then, however, a series of law extensions complying with shortsighted industry demands have created a path dependency, making a smooth restoration of copyright law very unlikely. But that does not lessen the value of the kind of copyright conservatism that Tim proposes, an approach to copyright focused on preserving certain principles rather than certain industry structures. (I may add that such approaches are practically non-existent in the debate here in Sweden.)

While re-restricting copyright law to the regulation of commercial exploitation may be a step in the right direction, the definition of “commercial” is without doubt tending to become more and more blurred. Instead of a gray zone between public and private copies, the law might have to handle a gray zone between commercial and non-commercial. The consequences are very hard to predict in detail, but the general idea of shifting focus from the regulation of tools to the regulation of exploitations makes a lot of sense. Such a direction for reform should be complemented by other limitations to copyright, which I don’t see mentioned in Tim’s posts. One is a radical limitation in time: It’s extremely hard to understand the motivation for the current term of “lifetime plus 70 years.” Another would be a careful widening of the “fair use” principle, in the direction of legalizing contemporary creative practices like recycling sound samples in new musical creations. Last of all, it should be made clear that copyright law does not regulate linking and indexing, and this could probably be done by strictly limiting the definition of “contributory infringement.”

I have now hinted at some possible directions for copyright reform, as Tim asks in his follow-up post. I’m still a non-believer in (rather than an opponent to) copyright, but in a close future of intensified gray-zone conflicts I think that it’s more urgent to prevent ACTA and similar dangerous proposals which are already in the process, than to construct detailed plans for how copyright should work ideally.

These proposals are not merely “adjustments;” they are changes to the fundamental character of copyright law, and I’d like Doug Lichtman to address them. His essay ends with the point that any law, not only copyright, is putting an “imaginary grid” over a chaotic reality. That’s true. Doug seems to draw the conclusion that the attempts to restrict distribution of metadata like song titles, to prevent the distinction between “streaming” and “downloading” from collapsing, is “evidence of a legal system properly at work.” I maintain that the regulation of tools, which copyright law is increasingly used for, can’t be described as only “engaging in the changing realities of the field it is designed to nurture,” but that it represents a fundamental shift in the function of copyright law.

Tim is absolutely right when claiming that “every successful legal regime works in tandem with a set of social norms and economic constraints that do most of the heavy lifting.” For that tandem to work well, the law must be easy to understand. Copyright law has grave problems with that. Not only is the distinction between private use and public distribution appearing more and more arbitrary — not only in relation to digital “sneakernets” or the widespread habit of sharing files via personal messenging software — but also the distinction between free ideas and copyrightable expressions, a distinction called into question by new artistic practices.

In other words, the crisis of copyright is not simply caused by technology. I’d like to underscore that, as it seems that Doug tries to accuse me of what is usually known as technological determinism.

(However, for the technically inclined I must highly recommend this piece by an anonymous Swedish blogger, written in response to my discussion here on Cato Unbound about the question of darknets. It’s a brilliant sketch about factors pushing toward one of two alternatives — “total streaming” or “digital vaults” — showing that in the end, it comes down to the question of how we as humans want to interact with information. Read that post and give comments!)

My own academic research focuses on how people have talked about music, and demonstrates how the institutions intended to safeguard musicianship have at different times had very changing motivations. Even for most of the 20th century, a musician was commonly defined as someone who earned money by performing music — selling recordings was rather a secondary activity, with economic importance only for a privileged minority of all musicians. Music was first a service, only second a product.

Doug makes the opposite assumption when he writes, “Instead of selling music, Fleischer tells us, musicians would earn their keep through public performances.” Such a formulation asserts that “selling music” is the same thing as selling digital copies, and that any performance aspect to music is secondary. That view became commonplace during the golden age of the CD, the last two decades of the 20th century. But what if that was rather a historical parenthesis? Maybe we now see the pendulum turning, so that music again becomes a service first, and a product second (which of course doesn’t mean that musicians will stop recording, but that the recordings get their economic value and cultural meaning by connecting to scarce qualities in space and time).

Doug’s idea that sales of reproductions will prevail as the future hub of the music economy — because the technology for reproducing music is there — is not uncommon. Much stranger is his claim that the economy of live performances inherently privileges large acts at the expense of smaller artists. In fact, it is more reasonable to assume the opposite: that the possible shift back to a model where music is more a service than a product is creating more multiplicity. It is fully possible for only a relative few artists, and a few large record labels, to flood the market with recordings which can be and are played everywhere. But it is not possible for artists to perform live at more than one place at a time. Thus, a performance-centered music economy tends to require more musicians. From my own experience — as a musician, as an event arranger, as part of audiences — it is very clear that most smaller acts have to rely on performances to make money (and, it could be added, to maintain a relationship with the audience).

Even if I am very reluctant to generalize over different music scenes, which all have their own customs, I have a hard time identifying Doug’s “niche acts that copyright could today support.” It’s also hard to see how a draconian copyright “could” be better at supporting niche acts. I’m also not convinced that geography must be such a big problem as Doug thinks. Every month I pay money for concerts or club nights with relatively small international artists coming to Stockholm from London, Berlin or Tokyo.

There is, once again, no universal solution for all musicians. But firstly, the question of how to create a viable institutional framework for music can’t be reduced to a question of copyright law. Copyright maximalism will not guarantee anyone’s income, especially not in the current climate of cultural superabundance. Secondly, Tim is completely right in pointing out: “The rest will have to keep their day jobs. Given that few musicians have ever been able to quit their day jobs, things won’t look much different from the perspective of the average musician.”

Movies are a somewhat different thing. Let me return to that question in a separate blog post.

Also from This Issue

Lead Essay

  • The Future of Copyright by Rasmus Fleischer

    “How relevant is it to declare oneself to be ‘for’ or ‘against’ copyright? Neither the stabilization nor the abolition of the copyright system seems within reach. All we see is a seemingly endless assembly line of new extensions to the law being proposed and enacted,” writes Rasmus Fleischer in this month’s Cato Unbound lead essay. Meanwhile, digital copying technologies continue to grow exponentially in storage capacity, to the point where a handheld device may soon be able to carry all music ever recorded and released. This threatens to make a mockery of copyright law, and those who support the extensions of current regime are fighting back. “Every broken regulation brings a cry for at least one new regulation even more sweepingly worded than the last. Copyright law in the 21st century tends to be less concerned about concrete cases of infringement, and more about criminalizing entire technologies because of their potential uses,” writes Fleischer, who predicts “seriously chilling effects on innovation, as the legal status of new technologies will always be uncertain under ever more invasive rules.”

Response Essays

  • Two Paths for Copyright Law by Timothy B. Lee

    It is often supposed that giving individuals more freedom to share copyrighted materials with one another will amount to the abolition of copyright. But this is far from true… The copyright policies of the last decade have been based on the idea that copyright is about controlling unauthorized copying. An alternative is to treat copyright as a limitation on commercial exploitation of creative works. Under this option, individuals could make any non-commercial use they liked of copyrighted works, including sharing them with strangers on the Internet, without fear of legal consequences. Copyright law would focus on commercial entities, who are both easier to regulate and better equipped to deal with copyright law’s complexities.

  • Nobody Puts Copyright in the Corner by Doug Lichtman

    Copyright law and copyright policy are both in the midst of enormous change. That doesn’t mean copyright is dying. The technologies available to facilitate the creation and distribution of creative work have themselves undergone enormous change. Copyright law is of course following suit, but as it does, we must make certain that those in the creative professions can still survive.

  • Towards a Copyriot Act — and Away from It, Again by Tom W. Bell

    Tom W. Bell raises a question: Copyright enforcement always has costs. How high are we willing to allow those costs to rise? How harsh, in other words, will we allow copyright law to become, as a counterweight to the ease with which people now can copy digital media? It is conceivable, he argues, that these costs might become too great, and that we will be forced to allow copyright to end, rather than bearing them.

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