How The Recording Industry Hid Its Latest Attempt To Expand Copyright (And Why You Should Call Your Senator To Stop It)
from the bad-ideas dept
Last month, we wrote about the problems of the CLASSICS Act that the House was voting on. There's a lot of background (much of it included in that post), that is not worth repeating, but the very short version is that sound recordings from before 1972 are treated somewhat differently under copyright law than songs recorded since February of 1972. Specifically, pre-1972 sound recordings are not covered by federal copyright law, but by a weird batch of state laws. Due to a bunch of shenanigans, many of those works will not be put into the public domain until 2067, even if by any other measure they should be in the public domain. The RIAA has always liked this aspect of pre-1972 songs. However, there are other aspects of pre-1972 songs that the RIAA does not like, and that's mainly that the lack of federal copyright coverage means that those works (mostly) don't get any performance rights, since most state laws didn't have such a concept. That's money the RIAA feels is being left on the table.
One way to handle this would be to just federalize the copyright on pre-1972 works and put all works on an equal footing. Easy, right? But that's not what the CLASSICS Act does. Instead, it just modernizes the parts of copyright for those works that help extract more money from people (such as adding in performance rights) while refusing to bring with it the parts of copyright law that protect the public -- including the timeline for things moving into the public domain.
Larry Lessig has a piece over at Wired where he explains how this is really just the latest attempt at copyright extension. Earlier this year, we had noted (happily!) that it appeared that the usual crew of copyright maximalists had appeared to give in, saying they had no intention to push for any sort of copyright term extension this year, meaning that for the first time in decades in the US, some works may actually enter the public domain on January 1st next year. And while the CLASSICS Act isn't a straight-up copyright term extension, it is a form of copyright expansion on old works, done for no other purpose than to give the copyright holders more ways to extract money, without any corresponding public benefit. As Lessig notes, this is explicitly a welfare system for musicians:
That this statute has nothing to do with the constitutional purpose of “promot[ing] Progress” is clear from its very title. The “Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act” (or CLASSICS) is as blatant a gift without any public return as is conceivable. And it's not just a gift through cash; it's a gift through a monopoly regulation of speech. Archives with recordings of music from the 1930s or 1940s would now have to clear permission before streaming their musical content even if the underlying work was in the public domain.
Yet there is no registry of these owners anywhere. And while massive digital suppliers, such as Apple Music and Spotify, could probably afford to carry the burden, no public or non-profit website could even begin to bear the cost of assuring they were not committing a crime. The act doesn’t harmonize American law with international law. Indeed, it creates more disharmony. No other jurisdiction creates a similar right anywhere. The act is simply a gift, paid for by further weakening the ability of archivists to keep our culture accessible. That’s why more than 40 professors of intellectual property of all political stripes signed a letter this week asking Congress to reject the CLASSICS Act.
Now that the bill is in the Senate, EFF is asking people to contact their Senators telling them to vote no on this bill.
Now, I should note that I've seen some recording industry lobbyists mocking Lessig's piece, claiming that how could he be against supporting musicians. This, of course, is the whole setup of this bill. It's designed -- like so many copyright expansions in the past -- to make it hard for people to question, because, really, who doesn't want to support the content creators we like? But that ignores the other side of this equation. Copyright is designed to benefit the public. The whole setup is to give an exclusivity to content creators for a limited time in order to give them the incentive to create.
For EVERY SINGLE WORK that would be impacted by this bill, that incentive worked. It worked decades and decades ago. Those recordings were all created prior to 1972. So why do they now need more incentive for the works that were already created? And why, if we're giving them more incentive, does the public not get anything back in return? That's the hidden part that the lobbyists and think tank shills for the recording industry are hoping you'll ignore. The "expansion" here is at the expense of the public. And it's a big expense. For no benefit at all. The copyright system was an incentive system for creation, in the recognition that it would then help the public get access to content. But the CLASSICS Act flips that over. It takes away from the public and provides no new incentives to anyone.
Instead, it's just a welfare bill for musicians. And, hey, Congress can set up a welfare system for musicians if it wants to, but it should be described as such and debated as such. Instead, this is being positioned very differently, because of course that's how the RIAA plays things.
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Filed Under: classics act, copyright, copyright extension, music, performance rights, pre-1972 sound recordings, public domain
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Reminder: Copyright incentivizes distribution, not creation.
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Sure copyright incentives distribution as OP states, it it also incentivized creation as well which OP incorrectly stated "not creation".
In a test of true and false, any falsehood in a statement renders the entire statement as false! And if I were a better person... that is why AC called OP and idiot!
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How does copyright give me an incentive to create?
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For me as a "creator" I am looking forward to the fact that my creation will be an intellectual property I get to own. I will not be giving it to a middle man as some of my family members have, I will be owning it entirely on my own and filing for it on my own. If I could not own it, I would not be expending my spare time creating it instead of doing something entertaining or getting a 2nd job or more income.
Copyright is most certainly an incentive for both distribution and creation. If creators would stop selling their souls to the distribution model a lot of these problems would become fixed soon enough.
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The argument is only over the incorrect statement.
Retro actively establishing copyright would not incentivize me to do anything as a creator, but OP did not say that.
There, I cleaned up your straw for you, try not to drop it all over the floor again!
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Everyone in my family does it for the love and the money is secondary.
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I also create things for the fun of it to. I have done game mods that I have released to the community and I got no payment.
But I still have incentive as a creator to create by having a copyright law back me up.
There is more than 1 incentive and incentives for each creator can be different. Additionally what incentivizes one creator might not incentivize another.
The point being... there is an incentive, even if that incentive does not motivate all participants!
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Appealing to an audience to create the fans who will support you is. That means getting your works known, and allowing the to circulate for free is an effective way of getting feedback as to whether your works have enough appeal to build that fanbase, as well as building that base.
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Not making that claim. Just saying it's has more than a negligible effect on my decision making. Definitely enough to consider it incentivizing for sure!
"Appealing to an audience to create the fans who will support you is."
Maybe, not all kick-starters succeed. My problem is that will my fans appreciate my work enough to give a no name a shot on promises alone? I don't have the resources to take that risk and quit my day job. I also feel that it would be unfair to ask for fan funding while having another job that can take time away from a project my fans have already paid for.
"That means getting your works known, and allowing the to circulate for free is an effective way of getting feedback as to whether your works have enough appeal to build that fanbase, as well as building that base."
I don't have a problem with any of my work being distributed for free to customers enjoying it even if those copies were illegal, I would never seek prosecution for that or use DRM. The point of copyright is not to protect me from my customers. It is to protect me from immoral competitors. I would seek prosecution of anyone making money off my work.
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Neither do all artists signed to a traditional record deal. At least with the kickstarter you're not tired into a multi-album deal that can leave you in debt to the label for life. Many artists who signed decades ago are still paying off their advance.
"I also feel that it would be unfair to ask for fan funding while having another job that can take time away from a project my fans have already paid for"
Well, that's your choice. If you can't afford to fund a project yourself, but you refuse to ask fans to fund you, then I'm not sure what to say other than you're deliberately restricting yourself in ways that have nothing to do with copyright.
"The point of copyright is not to protect me from my customers. It is to protect me from immoral competitors"
It's nice that you see that, and this is one of the reasons that while I think copyright is broken, the worst thing to happen would be for it to be removed completely (those with most resources can then rip off those with less without opposition).
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That's assuming they don't get all creative in terms of screwing you out of royalties. Only the most popular artists make any money out of copyright.
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Didn't recording industry accounting work something like this?
You get a $100k advance for an album
You make The album
So now the album's selling, and now you need to pay back the advance.
You're supposed to get 10% royalty from each album sold.
But you're not gonna see a cent for a good while. Why?
Because the studio doesn't use its cut of your album for covering your debts, it uses your cut. That 100k advance? your album will need to sell $1M to cover that, and that's without first going to paying for interest or studio rental or distribution fees or...
So with no money coming in, your choices for maintaining a livelihood are:
If your music is popular enough, try the physically taxing process of touring and live shows to make some cash, or
Get another advance and get deeper into the cycle. Go further
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If copyright ceased to exist tomorrow, would you still create works?
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Even if copyright ceased to exist and I still created works, it does not mean that it was not an incentive.
I can say this, the destruction of Copyright would definitely change my trajectory. Without the copyright I would certainly not be so willing to create a work that could be immediately stolen by EA and monetized by them.
As a creator I do support Copyright law in the original Constitutional sense. For limited time. I don't think copyright law should last for more than 10 years.
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This means you are afraid to distribute without copyright. A corporation cannot steal your work if you do not somehow distribute it; EA employees do not go rampaging through private homes in search of works to steal. (Not yet, anyway.) You would still create works in the absence of copyright, but you would not distribute them for fear that someone else could take credit for your works and do a better job of monetizing them. While I doubt you meant to prove my point, you did it all the same.
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So... is it an incentive to create, or to create with a specific business model in mind? If the latter, is it the business model we want to be encouraging? Models like Patreon can work without copyright.
Note also that EA couldn't "steal" anything without copyright. They could copy it, but then why would people pay EA rather than you? They could create a derived work, as you could from theirs.
Of course, selling something is pretty different from remixing it or putting it online, so we could start with that instead of eliminating copyright entirely: limit its applicability to commercial exploitation, as it effectively was when the Constitution was written (was any non-commercial user sued before 50 years ago?).
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Probably another good reason to get rid of copyright.
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Everything has a bias, including subatomic particles and facts.
Next time just admit that you can't think for yourself and figure out why they might hold that position.
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You can get paid for creating a work without having to slap a copyright on it. That, too, has been true for thousands of years.
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How about the entirety of culture and art created before the inception of copyright? I mean, I doubt Michaelangelo painted the ceiling of the Sistine Chapel for shits’n’giggles.
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There was old style patronage which included jobs like church organist, where a rich person supported an artist, which was the case for the traditional composers or painters. There were also those who sold their skills, like portrait painters. Actors and musicians gave live performances, and even with recordings, live performance is a more reliable source of income for a musician than recordings. These days with the Internet, the fans of an artists, (who are not all of the audience), can provide enough patronage.
In all case a body of published works, (or performances) is needed to gain the audience and fan base to support the artists. Almost all of the YouTubers who make a living full time from their creativity spent several years building their channel and reputation before they were able to give up the day job.
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How so? Regular people don't care about copyright. They'll distribute anything they enjoy, and copyright is just something a lawyer will smack them with occasionally, for reasons they don't understand (cf. No Copyright Intended: The Coming Generation Who Intrinsically Assumes Remix & Sharing Makes Sense).
The recording industry has spent huge amounts of money trying to disincentivize distribution. People were distributing their stuff all over the place, and their response was to buy a law allowing takedown notices.
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Copyright incentivizes legal distribution by providing a “temporary” monopoly on such distribution to the creator of a given work. That right gives to said creator the ability to sell their works without having to worry (too much) about other people selling those works under different circumstances. Any creator who gives up that right has to compete with those other sellers, which severely limits the amount of money that the creator could take in, which means the largest incentive for legal, monetized distribution of a work would require the artist to put in far more effort for much less of a guaranteed outcome.
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Not only are they competing with free copies, they are supporting their distribution as well.
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But it is a hell of an incentive to actually sell a creation.
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A point no-one was disputing. Yes, if you pretend something is property, salespeople will try to sell it. That doesn't mean that it should be property, or that selling it is societally useful.
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You're making a circular argument tangential to the earlier claim. You're basically saying that a monopoly incentivizes monopolistic distribution, by the holder of that monopoly. As the history of the music and film industries shows, literally everyone else is better suited to handle distribution. When a buddy of mine gives me a copy of a CD, I don't have to waste time ripping it; when they give me a movie or game, I don't have to screw around with DRM. I can dump this stuff onto a hard drive from which I can access any stored item in less than a second (without being subject to the whims of the studios wrt. Netflix/Spotify/etc. licensing churn).
The actual claim was that copyright incentivizes distribution; legality, exclusivity, and money were not part of it. I might say that the lack of copyright would incentivize legal distribution too. After all, what other kind of distribution would then exist? And when has any well-loved digital work suffered for lack of distribution, except because of copyright?
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Ah, but legality and exclusivity are part of it if someone would not distribute their works absent the two major privileges of copyright: exclusive control over distribution and the legal right to sue unauthorized distributors. A writer could create a story that would make them rich and famous if published, but if they believe they will never get paid what they deserve for that story in the absence of copyright, they might not ever publish that story.
Copyright incentivizes distribution. Whether you consider it a worthwhile incentive does not matter.
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So rather than risking making less money than they think they deserve, they will make no money. That is how to end up a bitter twisted person, moaning about lost opportunities because they would rather make no money to ensue nobody else could make money from their work.
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Nobody ever said making money from creative works would be easy…unless they were paid to say so by the MAFIAA.
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They just didn't count on reality pouring in once they lost control of the gates. It's a shame so many creative people were actually sold on the false promises before they even started.
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Someone has to ask, for the works covered how many of the artists are still alive, and do the labels have contact records for them and for the inheritors of those who have passed away?
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Doesn’t matter. The record companies will claim they own the copyrights, then rake in the income while the politicians line their pockets with campaign contributions.
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Still matters, because while the odds of the actual creators getting anything from this may in the 'low to none' range, they, not the recording companies, are who are being held up as justification for the bill.
If it turns out that they don't stand to benefit from the bill except for a handful of big names then it would make it all the clearer that this is yet another cheap 'won't someone think of the artists?' con that has nothing to do with them.
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Oh? Does the RIAA have a monopoly on that game?
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Not a legally enforced one, yet. That's on the agenda though.
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That would require them to actually do some gorram work, to actually give up some of the control they are so obsessed over, and moreover to admit that what they've been doing isn't working.
The odds of any of those happening are low to say the least.
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Joking Only Has Net Real Ongoing Dumbing Down of YOU.
In other words, acronyms aren't much effort, John-o.
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Musicians? or Record Companies?
I'd bet their contracts didn't even include performance rights or electronic media rights.
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Re: Musicians? or Record Companies?
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lets cut to the chase here
Artists have already signed up to become slaves to their IP masters so they are the last thing I care about right now.
They caused the problem, they deserve to suffer for it! The people that keep feeding these oppressive systems have no right to complain either. You are literally getting what you have paid for!
~No Sympathy
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Re: lets cut to the chase here
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Care to clean it up?
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Where did I state that someone "owns" a copyright? Rich posted "IP is a misnomer. No one "owns" a copyright."
I never made that claim. I said "owned IP" and IP is not copyright. And Owning IP is NOT a misnomer. IP = Intellectual Property, and property is owned! Just because it is owned, does not mean exclusive use either. I own my own fucking name but you can still use it because of "fair use".
So how does it feel to be this stupid? Let me guess... normal for you huh?
This might be of use to you.
https://www.vocabulary.com/dictionary/fallacy
"A fallacy is a misleading argument or belief based on a falsehood."
As clearly stated by me, Rich used a misleading argument based on a falsehood. I called his particular fallacy the straw-man one. If you have a better fallacy then I am all ears!
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Well you tried...
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'Wont someone think of the corpses(and my profits)!'
AA's: We just want to modernize the law with regards to pre-72 recordings so that it matches/exceeds how post-72 recordings are treated.
Anyone paying attention: All of it?
AA's: Oh hell no, just the parts that we'll benefit from, the stuff that helps us we definitely want to keep.
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You're NEVER gonna get hold of Mickey Mouse now, Mansick!
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Nobody loves you.
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copyright collisions
http://blog.sonicbids.com/why-you-might-not-be-able-to-legally-make-a-video-of-your-own-co ncert.
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Some inventivization that is.
Now that is how to incentivize living people to create more works, but copyright lasts beyond death already. So the main focus is on how to incentivize dead people to create more works, and we all know that ghosts are hard to motivate for anything short of unfinished business.
So incentivizing dead people is best done by stopping their business from being finished. Thus posthumous copyright extensions.
However, it might also be worthwhile to incentivize living people, so how about stopping copyright terms prehumously, say for 20 years until death?
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This sounds wrong, but,
A person in it to MAKE MONEY, Creates and earns money Over and over and even AFTER HE DIES, either the corp or Family get the money for another 2-3 generations?? OFF OF THE WORK A GRANDFATHER HAD DONE?? Even the rich cant go this far.
And in the beginnings of the RIAA, the contracts for the recording industry WE TERRIBLE for the artists.. everything went tot he corp and almost NOTHING to the artists, and NOW every part of the music is Protected, from Music, Words, and a few other parts..AND DONT EVER TRY to play a song from a Movie, TV series..
In all of this, you would think that the artist DURING HIS LIFE,, could save money and let his family live off what was Incurred in his LIFE TIME, and NOT after his death. But they really dont get paid allot.
PS. the MPAA wants the SAME..
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"...this is explicitly a welfare system for musicians..."
Many, if not most, of the artists who produced those works in the '40s and '30s have either given up any hope of receiving royalties for their works or have in fact ceased to exist.
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Support the creators and artists
Remember the dust-up a few years ago where Apple was accused of not paying the artists? Even Taylor Swift argued against Apple. Yet the media didn't mention the fact that Apple's contracts were with the record labels and not the artists, therefore, Apple didn't have to pay the artists since the record labels were supposed to do that. But it's always easier to argue against a large company like Apple than to look into the details.
The second problem is that it sounds like this law will cover every recording, whether or not the rightful copyright-owner can be found. Then what? Does the public lose out on the recording because a radio station is too afraid to play it and get sued because they didn't pay a royalty?
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Many also said that about slavery. Look what happened.
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cunts
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Not a welfare system for musicians
Of course the politicians only listen to the lobbyists who contribute to their campaign funds and other ventures. So even though this will cost the public and not benefit the musicians, I sure it will be supported by the majority of congress.
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All of your creations belong to us!
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