Experimental feature

Listen to this article

Experimental feature

Ian Anderson of Jethro Tull is horrified that Jethro Tull’s earliest recordings will begin to fall out of copyright in the near future under UK and European legislation. Mr Anderson argued in the Financial Times that we need equality on music copyright.

Should we do as Anderson says, or would both musical creativity and society as a whole be better off with a lot less copyright, not more? Should we have shorter copyright terms? And should we have less state-backed digital rights management? What direction should we go in if we want to “save music”?

James Boyle (above middle), Richard A. Epstein (above left) and Thomas W. Hazlett (above right), of FT.com’s New Technology Policy Forum answer your questions below on music copyright and related issues.

It’s difficult to accept the premise from Ian Anderson that the 50 year copyright protection should be extended. In any other industry 50 years is more than ample time to recover R&D costs and to harvest cash flow. It’s also mistaken to say the protected period helps fund present day R&D for new talent. Does the panel agree that 50 years is long a enough sentence for the discerning music public?
Gerry Kerins, London, UK

Richard A. Epstein: On some points yes and on others no. The 50 year period seems long enough for copyright, but the issue is really quite complicated. Songs are more distinctive than ordinary inventions, which good scientists will cook up sooner or later. So the patent system should be shorter because the blocking power of patents over inventions is so much greater. But this does not tell us the optimal length for copyright. What ever the right answer, it doesn’t seem to turn on the ability of the industry to “dictate” or “engineer” tastes. The copyright system does not block new songs or new firms from coming in. Ossified firms in fact present a bigger target. The hard question is the trade-off between innovation and dissemination when you cannot have both.

Thomas W. Hazlett: Yes, Mr. Anderson’s policy case is unconvincing, in my opinion. But not on the grounds that record companies are manipulating demand or suppressing innovation. Rather, it is just the reverse – with 50 years of property rights in musical creations, innovation is welcomed in the UK. A new Jethro Tull is effectively able to move into the marketplace, capturing profits to compensate for the investment in consumer-pleasing song making.

James Boyle: I’d offer another reason to support the same conclusion. I have recently been studying the work of Ray Charles – surely one of the most creative of all soul and R&B artists. Yet – partly aided by a shorter copyright term, and partly aided by a less legalistic musical culture, Mr. Charles routinely “reworded” old gospel songs, hymns and other classics to create the fusion of styles that was his hallmark – activities that today might prompt a lawsuit.

Our theory nowadays is that we should protect even the tiniest fragment of music with property rights – a recent Court of Appeals case in the US suggested that even the taking of two notes might count as copying. And we want to protect all of those fragments for longer and longer terms. But will this actually make more or better music? The original Jethro Tull, an 18th century agricultural pioneer, seems to have been keen that others could build on his innovations – such as the seed drill – because he realised that he had built on the innovations of his predecessors.

Does the panel agree with Ian Anderson’s view that the UK government should push for the term of music copyright protection in Europe to be put on a par with international standards?
Lucy Swift, California, US

Richard A. Epstein: From the point of view of British performers, the extension at home gets them more protection abroad, which leads to real pressures to extend. Socially it often leads to overlong terms everywhere, which is a bane in this area.

Thomas W. Hazlett: I think Ian Anderson makes a weak case. The fundamental economic issue is whether society will enjoy more abundant, more valuable works of creative imagination with copyright extension. His argument actually points in the opposite direction, boasting that the UK (with its relatively shorter copyright payback period) “has, arguably, produced close to half of the world’s output of the most artistically and financially valuable recordings since the earliest days of 78 rpm and vinyl records.”

As much as I’ve enjoyed Jethro Tull, Mr. Anderson will be eager to paint me as “Thick as a Brick” for pointing out that an appeal to “our great British recorded music heritage” suggests that artists are undeterred by the 50 year limit on royalties. As an economist, I readily understand why: the difference in returns to the innovator – when he or she innovates – is trivial when compared with a 75 year pay-out stream. Musical appreciation for aged rock stars, or their heirs, does not make a compelling case for extending copyright term.

James Boyle: Though I admit that the thought of Cliff Richard falling into the public domain is indeed a frightening one, I have to agree with Tom Hazlett and Richard Epstein. (Nice company!) I think there is no evidence at all that extending copyright term actually yields a surge in new creativity, and considerable evidence the other way. Mr. Anderson suggests that it is the “long tail” of copyright payments that supports record companies in their willingness to take a chance on new talent. The evidence, as Tom Hazlett points out, indicates precisely the opposite.

Countries with shorter copyright terms have produced remarkable amounts of creative work, extension is not positively correlated with the development of new music. If funding new talent was our social goal, extending copyright is a remarkably silly way to do it. Since the vast majority - well over 90 per cent - of copyrighted works are not commercially available after 50 years, what Mr. Anderson’s proposal would do is to lock up all of our musical heritage, in order to benefit the tiny fragment which still has a commercial market – denying to the archivists and digitisers who would make it available to all for free.

If we truly wanted to fund new talent, then by all means pay for that directly out of general tax revenue. Don’t give a windfall to the heirs of some lucky record companies and hope social good will follow. Mr. Anderson’s other argument is harmonisation – of the legal rather than the musical variety. Sadly, though it would make as much sense to harmonise protections down, as well as up, this is the claim that will appeal to international policy makers. But since there will always be one nation out there that has longer terms than the rest, we appear to be moving towards – to quote Professor Peter Jaszi - “perpetual copyright on the instalment plan.”

I’d be interested to hear if any of the panel think that music copyright should extend to rappers using samples from older albums. It’s a potential can of worms - where do you draw the line?
Richard Salter, Bristol

Richard A. Epstein: This is a potential can of worms no matter where you draw the line, because the rappers will try to creep right up to it. I am happy with small fragments and illusions, but not much more. Any substitute work is an infringement, but a piece with a small internal reference could probably pass fair use in most places.

As director of a startup trying to sell music downloads to phones, I was astounded at the charges for music copyright - 8-12 per cent goes to the Performing Rights Society, 50p goes to the label (if dependent) or 80p (if one of the majors). This leaves about 10p for us on a 1.50 download if sold by credit card! Ok when you are selling big numbers but for the startup - there are no options. When will the labels start to be flexible on their charges? Do they have to be when they have a hold over the market?
David Miller, Bristol, UK

Richard A. Epstein: Here we have one explanation for the movement into the illegal market, because prices are high for various services. But that could just be because the established copyright holders are uneasy about the use of new methods to download music, and their right to sell is one to sell or not to sell. It is not a regulated industry, and I don’t think that it should be. The high prices may be an effort to preserve other revenue streams.

Thomas W. Hazlett: Here’s some bad news: get used to slim margins in online distribution. Amazon.com has. They, and others, are learning that there are two essential ways to cope: scale or niche. And the latter does not generally survive as an independent business model for long.

James Boyle: I am sympathetic. The same thing has happened to internet radio and to webcasters. I agree that the margins will be slim – but if the slice is already thin, who will get most of it? Right now the music industry has insisted on a lion’s share. Their assumption is that your product or service is commoditised and theirs is not. The question is whether this attitude, together with the inequities in the distribution of the profits from copyrighted music, will spur the development of new musical markets altogether, with artists cutting out the middle man. That is going to take a while. We all have decades of tunes in our heads that were produced under the old system. Those are the ones we want to hear. But will it happen for the future? That’s a fascinating question.

If I pay for a song or TV program at a US online store I pay the copyright charge. Why, if copyright is the issue am I prevented to doing so from The Netherlands? Is it really about copyright charges or is it really about corporate control?
Rudolf Charel, The Netherlands

Richard A. Epstein: I am not quite sure about the thrust of this question. No one is prevented from paying additional fees. My sense is that what is asked is why this fee arrangement is not available in the Netherlands, which has to be a question of Dutch not US Law. But it is surely the case that corporations seek to use all sorts of devices to control the use of their music, including the pattern of their releases.

Will we see a (legal) digital music shop that can provide a better service than illegal downloading? Without considering price, the current crop of music shops actually offer an inferior product to that available to illegal downloaders. This is in marked contrast to stree-side pirate DVD retailers or knock-off luxury brand goods. When digital music is provided in Digital Rights Management crippled form, and even CDs must be handled with care to ensure they aren’t carrying any payload that may cripple your PC (thank you, Sony), downloading the music illegally has, in fact, become the *safer and better* option. If a music shop were able to provide downloads of at least the majority of songs you might have heard on the radio or TV, in the format and bitrate of your choice, uncrippled by DRM - then they would have a good value proposition to woo current illegal downloaders. The Russian site, allofmp3, provides a good model of how this could work. Could a UK legal version of this site (at higher prices, of course) be workable?
Alex Vallat, Cambridge, UK

Thomas W. Hazlett: It is unclear what service mix the market will eventually supply. The product being provided under legal and illegal constraints is distinct, and the limitations on use described in the question are designed to protect interests ignored in the grey market.

What is evident, however, is that all transmission mechanisms are moving forward at rapid pace. Just three or four years ago, the argument was widely made that music companies had not the slightest interest in achieving new sales via digital networks, and were oblivious to the opportunities presented. That view has been buried by iPOD and its rivals. We are now in the midst of a race to discover legal and efficient market mechanisms for delivering song and video, and it is as yet unknown where, precisely, the path will lead.

James Boyle: In some ways I think we already have – at least if you measure “better” by ease of discovery, guarantees that the file isn’t loaded with viruses, isn’t actually an empty “spoof” file, or even – to quote my favourite example – Madonna swearing at the downloader and telling them not to steal. The mantra of the record industry has been “you can’t compete with free.” But you can – the standard example is bottled water. Guarantees of quality, convenience, and portability are all things people will pay for. Record companies merely need to offer an alternative that is convenient enough for a large enough chunk of the market.

Unfortunately, as Sony recently demonstrated with its infamous “root-kit,” record companies are obsessed with also achieving total digital control over the material they release – often installing quite dangerous Digital Rights Management covertly into users computers. People will rent from Blockbuster video rather than copying movies from TV. But if the Blockbuster video tried to break their VCR so the record button did not work any more, they might think twice. Right now, iTunes’ Digital Rights Management is perceived as being pretty non invasive. Most people aren’t even aware of it. But when they want to take their music onto another new computer or another, or to restore it after a total crash, that may change.

Richard A. Epstein: There may be one simple reason why the DRM sites are more difficult to navigate than the Russian site (of which I know not). Do they place any restrictions on the ability to transfer content to someone else? If they do, then someone should either license their technology or develop analogous technology with the same performance. If not, there is little reason to imitate sites that offer no protection to content.

As the internet has no geographical boundaries, am I bound by the music copyright laws of the country which hosts my internet account? Can I ignore other countries’ copyright laws?
Jill Andersen, Notts, UK

Richard A. Epstein: The simple answer is that law is territorial even if the internet is not. So the first question is whether you are bound by the country that hosts your internet account if you live in a different nation. Usually that is resolved by contract as between the parties, unless there is some strong public policy objection, not readily available here. But in general you should be safe if you keep to the terms of the agreement.

The nice question is suppose you to take you music with you on vacation to a third nation, and play it there. No one ever worried about this in the age of records, and my guess is that they will not worry about it here, unless you try to make some commercial distribution of the music, at which point you are in trouble everywhere.

A musical work can be divided into recorded performance and printed notation, both of which representations eventually fall into the public domain. Still, publishers copyright their editions of public domain works such as the bulk of the classical repertoire. What exactly, then, is copyrighted in a printed score, if not the music itself?
Albert Frantz, Vienna, Austria

Richard A. Epstein: Often the notations in the score differ on such matters as phrasing and loudness, or there are annotations, which can be protected.


Who actually holds the copyright in a piece of music - the artist, the record company, composer/publisher or all three?
Jack Palmer, London, England

Richard A. Epstein: The author is the person who receives the copyright as a matter of law. But it can be assigned or shared with the other players by agreement, which often happens. The deals among the key players do not reduce or increase the rights of outsiders.

I am a songwriter. In instances where I write only the lyrics or melody, how would royalties typically be split with my co-writer? Would these royalties be subject to the ‘50-year’ rule? Where I write words and music, but a different singer makes the song well known, what rights to royalties does that singer have?
Crispin Thomas, Somerset, England

Richard A. Epstein:: The basic point is that the split between two authors is by contract, and 50 per cent is a convenient focal point, not a legal or moral necessity. The singer who uses the song will have to negotiate a deal with you, and that could involve any kind of a split as well. The fact of joint ownership does not extend the rights to either words or music.

Background briefing

Click here for Ian Anderson of Jethro Tull on why we need equality on music copyright

Click here for more about the New Technology Policy Forum contributors

Click here for an archive and explanation of how the forum works

Copyright The Financial Times Limited 2018. All rights reserved.

Comments have not been enabled for this article.