ACTA 'May Interfere With Fundamental Freedoms' -- EU Data Protection Supervisor

The dramatic announcement that the EU's rapporteur on ACTA, David Martin, would be recommending that the European Parliament should reject the treaty was made at the end of a morning conference on the subject organized by Socialists and Democrats in the European Parliament. One of those speaking in favor of ACTA at that meeting was Helienne Lindvall, a professional songwriter and musician, who has now blogged about it: 

On Techdirt.

Copyright Theft

The ideas that "copyright theft" is widespread, and that people are "stealing" digital content from creators, are favourite tropes of the copyright maximalists.  It's total rubbish, of course.  The law clearly states that if it is anything it is copyright infringement, and simple logic tells us that digital copies aren't stealing, because they do not take away, but add.

Yes, there is a question of whether that unauthorised duplication leads to a loss of revenue, but the answer is by no means as clear-cut as people would have you believe.  A range of studies shows that such sharing actually boosts sales, acting as unofficial - and free - marketing.

That's why I've long been advocating independent research into this area - after all, if the copyright industries are so sure that file sharing is leading to revenue loss, what have they to fear from objective research into this area?  And yet strangely they seem reluctant even to countenance the idea.

But whatever your views on that particular issue, it seems likely that the following will only exacerbate the problem [.pdf]:

The [European] Council today adopted by qualified majority a directive extending the term of protection of the rights of performers and phonogram producers on music recordings within the EU from 50 to 70 years.

What this means, in practical terms, is that there is very little chance that I - or any of my more musical contemporaries - will ever be able to use today's music recordings to create new works.  As with the other media, contemporary recorded music will live in a closed, antiseptic bubble that no one is allowed to penetrate for nearly a hundred years or so.

That's all very distant and theoretical; it's hard to see what the problem is, perhas.  So let's look a little more closely at what has happened here by imagining a strange parallel world, remarkable like our own until yesterday, when the following happened:

The [European] Council Council today adopted by qualified majority a directive reducing the term of protection of the rights of performers and phonogram producers on music recordings within the EU from 50 to 30 years.

As you can see, this is almost exactly the same as our world, with the very minor difference that the copyright term for music recordings was reduced by 20 years, instead of being increased.  Pretty minor, you might think - after all, what's 20 years plus or minus?  If it can be increased, it can be decreased, no?

But in that parallel world, imagine the howls of anger and pain that would be issuing forth from the music industry at this outrageous and unjustified appropriation of their rightful dues.  Musicians would be marching in the streets, and the companies that live off them would be lobbying as never before to get this terrible result reversed.

Luckily for them, that was in a parallel world.  But thanks to the symmetry of copyright - that it represents a bargain between creators and the public, with grants of a temporary monopoly to the former in return for the passage into the public domain of the work after that monopoly has expired - that very same expropriation has taken place - from you, me and everyone that goes to make up that nebulous "public".  The only really difference is that no one is marching in the streets to reverse it.

When the musicians recorded their songs, the deal was that they would receive copyright for 50 years (or maybe less, depending on when they recorded it).  In return for that 50 years, they agreed that the public domain would be enriched so that we, the public, could do as we wished with that music.

That compact, freely entered into by both sides, has just been broken.  The recordings will no longer enter the public domain on the agreed date; instead, we must wait yet another 20 years.  In effect, then, we have had 20 years public domain use stolen from us, since nothing was given in return for this sudden loss.

There can be no quibbling here about whether this is really theft, because something we had before has been taken away without our permission.  Yes, the European Council may theoretically be acting in our name, but I don't remember being asked at any point whether I agreed to this.  The fact is that the Council acted unilaterally, at the behest of the music industry that wanted something for nothing - not because we, the public, were begging politicians to change the law in this way and to make us poorer than we were before.

This is what *real* copyright theft looks like: the stealing from the public by yet another unjustified and undemocratic extension of copyright.

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Is Format Shifting a Big Giveaway?

Yesterday I wrote about the BPI's reaction to the UK Government's response to the Hargreaves Report. Not surprisingly, the Musicians' Union (MU) also has a view here, specifically about proposals to allow format shifting:

In response to today’s government announcement of a consultation on a new exception to UK copyright law which would legalise the act of making a private copy of a CD, the MU has called for a fair compensation scheme to be introduced.

So why might that be? The MU has an interesting analogy:

“The device manufacturers readily pay for patents and the like on each device sold and yet the act of copying onto these devices the very content that the consumer is most concerned with – music, is not currently generating any income for the creative individuals who compose and perform and entertain the public.”

It's fascinating to see one intellectual monopoly being used to justify another. But what this overlooks is that manufacturers do not "readily" pay for patents: they are forced to do so by the government - which, of course, is precisely what the MU wants for its "fair compensation scheme".

Except that it's not fair. The MU says the music-playing device "is not currently generating any income for the creative individuals who compose and perform and entertain the public": why on earth should it? The musicians had nothing whatsoever to do with that device; they didn't design it and they didn't make it. It might never play any music, but be used for playing back recordings made in the home or outdoors, for example.

And if it does play back format-shifted music, the point is that by definition it will come from another a medium like a CD that the customers have already paid for - that's why it's called "format shifting". That means that the musicians will also have already been paid. So why should they be paid again for doing precisely nothing?

The MU's statement here is a real giveaway in the sense that it reveals the abiding and ingrained sense of entitlement that pervades all the creative industries. They are not content to be paid once like most people, but want to be paid again and again.

That is also evident in the concluding paragraph:

The Union has been robust in its opposition to this proposal and UK Music has adopted the MU position and is making the case for fair compensation to be made in return for the introduction of an exception. As part of this UK Music is examining the economic tool of ‘choice modelling’ to determine the value that the ability of being able to store music adds to devices such as the iPhone in order to present a robust argument to Government.

Again, even assuming that such a value exists, there is no reason that musicians should receive any more payments for it. That value has already been factored into the price of the music when it was bought, in whatever form, and into the compensation paid to the musicians who made it - that's how markets work.

Arguing the contrary makes as much sense as arguing that the existence of devices like music players and smartphones increases the value of the music played on them, because people are willing to pay more to have this useful extra capability. By the MU's logic, musicians should therefore pay a levy to device manufacturers for this added value the latter create for artists.

Of course that's absurd - as absurd as the MU's proposals that musicians should be paid again for the fact that you might actually play digital music on a digital device. The point is that all these kinds of "value" are already factored into the prices we pay.

Trying to argue that musicians deserves a cut of some of this nominal value is yet another example of the fantasy-based economics the creative industries regularly apply to the digital world. Maybe it's time they "shifted" away....

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Putting Spotify on the Spot

There has been some criticism that Spotify doesn't really bring in much money for the artists concerned (the labels, of course, do fine). But here's an interesting point that's worth bearing in mind more generally:

Moving on, the data claims that to make minimum wage, an artist would need 4.6M plays on a streaming service like Spotify. While that might be technically true, it's a pretty meaningless calculation. It does not take into account the promotional value of streaming -- and unlike selling 143 CDs, getting 4.6M plays of a digital track would certainly lead to significant revenue elsewhere. Surely an artist would be able to translate that much attention into successful live shows or their own CwF+RtB offering. After all, we've seen time and time again that focusing on something as narrow as money earned per track sold (or streamed play) is a limited way to view a musician's earning potential.

Follow me @glynmoody on Twitter or identi.ca.

The BBC Blows it Again

More incisive reporting from the BBC - not. This time, it concerns the move to extend performers' copyright from 50 to 70 years. The UK Government - to its credit - is resisting, because it makes no sense economically: copyright is meant to encourage *new* creation, not reward existing work.

Increasing the copyright term will cannot encourage people who have already created (absent time machines), offers marginal additional incentive to those who might create, but represents a massive loss for the public domain. Alas, the musicians - and the BBC - don't seem to get this:

A video message on behalf of 38,000 UK musicians has been sent to Gordon Brown urging him to back an extension of their copyright protection.

The musicians, many of whom have worked with major artists, say they risk losing their income under current laws.

The BBC has sunk to new depths of sloppy reporting by failing even to mention why there might be another side to this story - choosing, instead, to peddle the musicians' sob-story:

"The amount of revenue that's been brought into this country by these people is quite staggering. Now we require the government to help us out a little bit and show perhaps a bit of gratitude."

He added: "Instead they choose to kick us in the face and ignore our campaign to extend the copyright for these people and their estate."

Read All About It! - But Not in Newspaper

I'm making a promise to myself, and now to you, to reverse this trend. The future of journalism, not just newspapers, depends upon such loyalty. And now I pose this challenge to you: It is your duty as a journalist and a citizen to read the newspaper -- emphasis on paper, not pixels.

No, no, no, it's got to be clay tablets - I mean, why pick one particular modern instantiation? Let's at least go back to the origins of news.

And if you want to know why the suggestion that we all rush down the newsagents is simply a waste of time, try this, from the same misguided article:

I have no proof, but a strong feeling, that even journalists, especially young ones working at newspapers, don't read the paper. That feels wrong to me -- and self-defeating.

You don't think this could possibly be because they realise there are better ways of getting and conveying information these days? Just like more and more musicians realise that there are better ways of making a living from music than selling bits of plastic with little holes in them. (Via IP Democracy.)