Copyright vs curatorship: music publishers and the cultural commons

Anecdotes are emerging in response to my earlier post about the failures of some music publishers adequately to represent their composers that should make alarming reading for anyone concerned about copyright and the cultural commons. In particular, readers are reporting (in comments and on Twitter) stories of publishers who are unaware of  the works in their catalogue, unable to locate works that they say they hold, and even unwilling to sell scores to eager customers.

Perhaps the most disturbing story of all comes from composer Nicholas Chase:

A friend of mine researching Kagel found that Universal lists items they claim Peters has and vice versa – in the meantime those scores have gone entirely lost and neither agency seems interested in the items, even though their loss means those works go unperformed (i.e. no income for the publisher), never mind the musicological horror of missing works. I used to manage a well-known US composer’s library; he himself assumed that publishers would be the repository for his work, but when the US Library of Congress asked for a full-copy of his library, the publishers not only didn’t have scores they advertised and claimed publishing rights to, my mentor had to spend the time and money to track down copies himself. In some cases, these scores simply weren’t to be had. And the publishers didn’t really seem to care. I can’t express the overall anguish we all went through realizing that seminal works from this man’s career simply no longer existed.

Assuming such stories are true this is shocking stuff. Not news, perhaps, to those few who regularly try to buy obscure new music scores (or not so obscure: one correspondent reports the difficulties to be had in getting hold of Xenakis’s Metastasis), but it should be a matter of considerable wider concern that administrative failures such as these are leading to the disappearance of chunks of our cultural heritage. Chunks that, thanks to the copyright lock held on such works by those publishers, means that it is almost impossible for musicians legally to bring those works into public audition.

Yesterday I read a review of the BBC One’s The World’s Most Expensive Paintings and I’m reminded now of the heinous Japanese art collector Ryoei Sato:

In 1990 Saito bought a version of Van Gogh’s Portrait of Dr Gachet for a mega-record $82 million. The following day he also bought Renoir’s Au Moulin de Galette for $78 million. When, shortly after, he faced financial ruin, he threatened to have both paintings cremated with him when he died in order to avoid inheritance tax. He pegged it six years later, and the two paintings’ whereabouts remain unknown.

I’m certainly not saying that music publishers are as villainously self-indulgent as Saito, but I do believe that ownership and control of works of art comes with a degree of responsibility to make them available on request – even if that is, quite reasonably, for a fee. At the very least it comes with a duty to preserve them until the relevant copyright expires and they can be given to the public domain. Saito’s actions have removed two great paintings from the world, possibly for ever. Music publishers are similarly guilty when they lose track of the works that have been entrusted to their catalogue. There are grey areas, of course (private art collections, for example), but I see few that apply to the production and distribution of musical scores. This is an argument against neither copyright, nor music publishers, but a call for those who hold such copyrights, and enjoy their benefits, to balance them with the public responsibility that they entail.

Update, 15 July: Daniel Wolf has written an overview of the pros and cons of self-publishing vs throwing your lot in with a commercial house. It’s worth reading the whole thing, but it ends with a short proto-manifesto for composers and publishers, which includes the commendable suggestion:

should promotion not be carried out by the terms of the contract or should the materials be orphaned by the publisher, all publication rights should revert to the composer.

IMSLP takedown: Here we go again

News reaches us that the International Music Score Library Project has once again been forced offline, this time thanks to an intervention from the Music Publishers Association of Great Britain.

The full story may be followed on the IMSLP forums here. In summary, the MPA objected to the posting of the score of Rachmaninoff’s The Bells, op.35. They issued a complaint to Go-Daddy, the company who register the IMSLP domain name who then, pre-emptively and apparently without consultation, froze the IMSLP URL.

Haven’t we been here before? Yes we have, when Universal Edition managed to shut IMSLP down for almost a year in 2007-8. Back then, extensive legal debates took place about the nature of the public domain across multiple jurisdictions and a resolution that appeared to suit everyone was reached. (Michael Geist’s commentary piece from the time of the first shutdown is worth revisiting.) Certainly a lot of legal clarity was brought to what is an important and complex issue.

Those lessons don’t seem to have been learnt by the MPA, however (they should know better – Universal’s UK branch is one of their members). It is depressing for us – and no doubt distressing for those directly in receipt of DMCA threats – that we have to return to this poisoned ground. There is a lengthy rebuttal of the MPA’s legal argument on the IMSLP forums here; lets hope matters are resolved swiftly. That post ends with the following lament:

Needless to say, we’ve already responded to Go-Daddy’s arbitrary action with a request to reconsider their response. We are also looking into the pursuit of legal action of our own against the Music Publishers Association of the UK for their malicious attempt to shut this site down. Sad to say, the Evil Empire Strikes Back – all too soon. Too bad that a gang of dying companies running on a failed business model can’t find anything more productive to do with their time (like maybe promoting the works of living composers, instead of playing lawyer over ones dead since 1943).

Read previous Rambler posts on the last round of the IMSLP copyright saga here.

Update 1: Story now up on BoingBoing, thanks to Danny.

Update 2: User faust on the IMSLP forums makes the important point that this is an action instigated by the MPA, not any publishers themselves: we shouldn’t assume they’re singing from the same hymnsheet here, nor should we tar them with the same brush. Point taken. However, it does make me wonder what UE, who have been round this block once already, think of what their professional association  is doing.

Update 3: Some words from the MPA themselves, via Twitter (@the_MPA):

MPA will seek to work with @IMSLP to ensure that all scores made available comply with relevant copyright legislation.

In the meantime MPA has contacted GoDaddy to request the @IMSLP domain be reinstated.

It remains to be seen what ‘relevant’ means in that first Tweet – that sounds like weasel language to me, and surely the issue of what are the relevant copyright statutes was covered in 2007-8 when UE first brought action. As IMSLP have already explained, under that definition the MPA can have no cause for complaint.

Update 4: imslp.org is back online! (See also my next post.)

Image adapted from photo by Powazny on Flickr.

ROH offer consultation with opera bloggers over copyright

Encouraging developments from Covent Garden today as the ROH invites a group of influential opera bloggers to a consultation on social media and rights management. This comes, of course, in the wake of the dispute with Intermezzo over the posting of copyrighted images.

Rights and copyright have become even more complicated in the digital age. Like a lot of arts organisations, we need to protect our rights and those of our artists, while also finding the best ways to share our work and encourage people to participate in it. Until now, the way we use social media has not been connected to our rights-management strategy, but it’s very clear that we need to bring the two closer together.

Of course, it remains to be seen what the results of such a consultation might be, but I think this is a mature and sensible response from the ROH. The conflict between rights management and social media commentary is only going to get harder for arts organisations to manage, and this looks like a seriously-intended attempt to arrest the chilling effect. I don’t expect it will produce the solution, but the attempt deserves support. Compromises will need to be made in order to strike the right balance between publicity and commentary on the one hand and the legitimate protection of creative rights on the other. If this consultation is an olive branch then those bloggers who are involved should be prepared to give some ground towards it.

How far we’ve come

Welcome to 2010, everyone. The noughties were when the copyright wars got serious. Let’s start the new decade with a little compare and contrast:

The greatest development in music history (Kenneth Woods)

Not long ago, the IMSLP (International Music Score Library Project) had to go offline under legal threat.

For those of you not in the know, the IMSLP is a library of scanned music in the public domain, uploaded by volunteers and available for anyone to download and print for free. Although the IMSLP has been careful to respect copyright law, they have never been popular with publishers, and when the database’s administrator (Edward W. Guo) was sued by a major publisher, he felt that he could not live with the financial risk and turned the website off.

Fortunately, the music and internet community rallied behind the project and a legal team managed to get the project free from under threat. The IMSLP re-emerged in June 2008, as a useful resource for musicians everywhere.

However, recent developments show that the IMSLP’s re-emergence is not simply a happy development for foks who need to download a missing cello part for a Mozart quartet on short notice. It has proven to be an event of historic significance.

In the early days, the materials on the IMSLP were often of mixed, even dubious, value. Quite a few things were scans of dodgy editions, or home-made parts done with limited proof-reading on less-than-first-rate notation software. All nice for a chamber music reading party, but not of much use professionally.

However, in recent months, incredibly important developments have been rocketing forward at great speed. Most remarkably, if one goes to the pages of any of the Beethoven symphonies, you can find not only the scanned copy of the Dover scores, which have been available for a long time, but professional scans of the manuscripts (where available) the first editions of the scores (often the primary source when the manuscript is lost) and the parts. There are multiple editions of the scores, and transcriptions for 2 hands and 4 hands piano.

Most importantly, the scans of the manuscripts come not from some well intentioned grad student, but from the Beethoven Haus, Bonn, itself. This means the IMSLP is suddenly at the forefront of making available essential and invaluable study and research material to musicians anywhere in the world for free at the touch of a button, and they are doing it in collaboration with leading scholarly institutions. If you think some over-zealous editor has been cheating the facts in your expensive Urtext edition, you can now go straight to the source and see for yourself.

January 1st is National Book Burning Day (Techdirt)

James Boyle is noting that, assuming he would have renewed his copyright, tomorrow is the day that Ray Bradbury’s Farenheit 451 would have gone into the public domain under the law as it was before 1976. But now it won’t be. Instead of the “book burning” found in that book, we’ve created a different kind of book burning. Thanks to lawyers, lobbyists and politicians, we’ve locked up a massive number of works that should be available for all, and the vast majority of which are available for none.

Unlike Fahrenheit 451, the vast majority of the culture swept into this 20th century black hole, was not commercially available and, in most cases, the authors are unknown. The works are locked up — with no benefit to anyone — and no one has the key that would unlock them. We have cut ourselves off from our own culture, left it to molder — and in the case of nitrate film, literally disintegrate — with no benefit to anyone. The works may not be physically destroyed — although many of them are; disappearing, disintegrating, or simply getting lost in the vastly long period of copyright to which we have relegated them. But for the vast majority of works and the vast majority of citizens who do not have access to one of our great libraries, they are gone as thoroughly as if we had piled up the culture of the 20th century and simply set fire to it; and all this right at the moment when we could have used the Internet vastly to expand the scope of cultural access. Bradbury’s firemen at least set fire to their own culture out of deep ideological commitment, vile though it may have been. We have set fire to our cultural record for no reason; even if we had wanted retrospectively to enrich the tiny number of beneficiaries whose work keeps commercial value beyond 56 years, we could have done so without these effects. The ironies are almost too painful to contemplate.

Happy Public Domain Day. xxx

Second Jammie Thomas trial still leaves questions unanswered

Jammie Thomas (now Thomas-Rasset) is not the first person charged by the RIAA with copyright infringement for downloading and sharing music files, but she is the first to have taken the RIAA before a jury, rather than reach a settlement outside.

She lost her first trial and was ordered to pay $222,000 damages for sharing 24 songs. However, a retrial was ordered when the judge revealed that he had falsely instructed the jury on the technicalities of copyright infringement. The retrial concluded yesterday, with a federal jury finding Thomas-Rasset liable again, and a judge now ordering her to pay damages of $1.92 million, or $80,000 for each of the following tracks:

* Guns N Roses “Welcome to the Jungle”; “November Rain”
* Vanessa Williams “Save the Best for Last”
* Janet Jackson “Let’s Wait Awhile”
* Gloria Estefan “Here We Are”; “Coming Out of the Heart”; “Rhythm is Gonna Get You”
* Goo Goo Dolls “Iris”
* Journey “Faithfully”; “Don’t Stop Believing”
* Sara McLachlan “Possession”; “Building a Mystery”
* Aerosmith “Cryin’”
* Linkin Park “One Step Closer”
* Def Leppard “Pour Some Sugar on Me”
* Reba McEntire “One Honest Heart”
* Bryan Adams “Somebody”
* No Doubt “Bathwater”; “Hella Good”; “Different People”
* Sheryl Crow “Run Baby Run”
* Richard Marx “Now and Forever”
* Destiny’s Child “Bills, Bills, Bills”
* Green Day “Basket Case”

Statutory damages for willful infringement of copyright can range from $750 to $150,000. The jury in this case were particularly punitive, it is thought, because they felt that Thomas-Rasset had been lying to them. And it must be said that the story of how the files got from her computer onto the Kazaa filesharing site has been sketchy. Nevertheless, the judge in this case appears not to have clarified the difference between the right to statutory damages and the right to compensatory damages. The former allows for whopping punitive fines like this without the burden of demonstrating exactly how much money has been lost for each infringement.

According to ars technica, there is talk, however, that the RIAA may not try to collect these damages for fear of stoking even more grassroots anger. There is also a good chance that this case will go further, possibly all the way to the Supreme Court, since there may be Constitutional concerns over the exorbitant fines that music corporations are empowered to wield against individual citizens.

Whatever happens, it is extremely unlikely that a cent will go to any of the artists above, some of whom have had previous brushes with copyright infringement. Bryan Adams has forced fansites into signing rights agreements for use of his name and picture. A blogger was arrested for streaming nine leaked songs from Guns ‘n’ Roses’ Chinese Democracy (his sentence was reduced to one year imprisonment for assisting the FBI); the band weren’t impressed. And Aerosmith have successfully used the threat of copyright action to prevent one of their songs being used in a GOP campaign video.

There are pros and cons to all these stories, and to the Jammie Thomas-Rasset case. Artists have, and deserve, rights in their works that need to be protected. The big flipside, particularly evident in Thomas-Rasset, is that the legal mechanisms appear to be in place now for corporate copyright holders to exercise a power way beyond the spirit of the rights they are defending, and possibly even against the interests of their own artists if anger against their policies continues and spreads. The big question still unaddressed is for how long will artists be happy to remain complicit in the punitive strategies of their paymasters, or will there come a point when they realise that such wild-eyed greed is not why they got into music in the first place?

Case against Pirate Bay starts to unravel

At last, some good news in copyright, courtesy of the Telegraph (thanks to John F for the tip). Via Mashable:

It’s only their second day in court, and The Pirate Bay already seems to be winning the legal battle against the plaintiffs – Universal, Warner Bros, MGM, EMI, 20th Century Fox, Colombia Pictures, and Sony BMG.

According to TorrentFreak, half of the charges against The Pirate Bay have already been dropped due to lack of evidence. Therefore, the prosecutor has dropped all charges related to “assisting copyright infringement,” with the remaining charges being related to “assisting making available.”

It seems that the prosecutor was simply unable to prove that the .torrent files – which are important evidence in this case – are in any way related to The Pirate Bay’s torrent tracker.

So, the Swedish court seems to have recognized that a torrent search engine, which doesn’t store actual copyrighted files, cannot be guilty of copyright infringement. This is already a huge victory for The Pirate Bay, even if they lose on other charges – which now seems unlikely. What seemed to be a long legal battle might turn into a short (and sweet, for The Pirate Bay) affair.

Music copyright to be extended to 95 years in the EU

Bad news for copyleftists. The measure still needs ratification from the European Parliament and member states, but 95-year copyright terms in recordings look increasingly likely. A plenary vote will take place on 24–26 March. The Greens, at least, intend to vote against.

The Times have claimed this as a victory for musicians as go-ahead given for copyright to be extended to 95 years. But the pensions of Cliff Richard and Feargal Sharkey are hardly the whole story.

Here is Andrew Gowers in December explaining, once again, that “copyright extension has high costs to the public and negligible benefits for the creative community”:

In addition to the usual pleasantries about Britain’s creative industries, Mr Burnham set out a novel argument about the law of copyright protecting musicians’ work.

There was, he said, “a moral case” for performers – who often do their best recorded work in their 20s and 30s – to benefit from it throughout their lifetime. The government would therefore consider extending copyright for recordings to 70 years from the present 50.

As political speeches go, this is pretty silly. A moral case? You might just as well say sportspeople have a moral case to a pension at 30.

Copyright is an economic instrument, not a moral one, and if you consider the economic arguments – as I did two years ago at the request of Gordon Brown – you will find that they do not stack up. All the respectable research shows that copyright extension has high costs to the public and negligible benefits for the creative community.

Here is Cory Doctorow last month on why 95 years is a bad idea:

Independent and government experts from the UK and the EU agree: extending copyright will do little to remunerate recording artists (the majority of artists will receive between €0.26 and €26.79 each year for the first decade), but it will result in a gigantic windfall for a few multinational companies, taking £150m from the pockets of Europeans and transferring it to the record labels – after a tiny slice is shaved off for poor artists.

Here is a statement put out by the Centre for Intellectual Property Policy and Management at Bournemouth University, in which the “aging artist” argument is particularly addressed:

Under the current 50 year term, a track recorded when a performer was 25 will be protected until age 75. If the artist continued recording throughout her performing life, the current term will most likely outlast the performer’s lifespan. Not a single artist has a life expectancy of 45 years at age 75 – yet this is the extension the Commission proposes. If the Commission really wanted to help performers, it would (i) limit the term to the artist’s life, (ii) make such a term not available to record producers (labels), and (iii) look at recording contracts during the existing term. Any independent assessment will show the “ageing performers” argument as a smoke screen.

The CIPPM are also sharp on the economic impact of the proposed measures on young musicians just entering the profession:

Minor beneficiaries are ordinary working performers. The bottom 80% of performers would each receive between € 4 and € 58 a year (calculation based on Commission’s own figures). [TR-J: Presumably Doctorow’s figures above refer to a smaller percentile of performers.] Some of these benefits however come at the costs of younger performers just entering the profession, as the same pot of money will have to be shared by more artists, many of whom are or will be dead.

The Max Planck Institute for Intellectual Property Law has published a 22-page demolition [pdf] of the proposed changes, concluding:

The relationships addressed by the Commission in its proposal are complex. The Commission cannot be expected to have exhaustive legal or factual expert knowledge in this field. However, this is no justification for the blind implementation of specific commercial interests without consulting independent experts.

More links available at the Centre for the History and Analysis of Recorded Music.

The end of DRM on iTunes?

Could it be true?

Apple Inc has agreed to start selling digital songs from its iTunes store without copy protection software.

At present, most music downloaded from Apple’s iTunes store can only be played through an iTunes interface or iPod.

The new agreement with Sony BMG, Universal, and Warner Music will end digital rights management (DRM)software currently attached to iTunes music.

Musicology and copyright in sound recordings

The following email has been going around some academic mailing lists, courtesy of Nicholas Cook, director of the AHRC Research Centre for the History and Analysis of Recorded Music, but I think the issues it raises are important enough to deserve a wider audience:

Most of you will probably know that the European Commission, prompted by the major record companies, plans to extend copyright on sound recordings from 50 to 95 years, in line with the US. The result in the US has been to make access to the vast majority of the recorded legacy impossible (for details see http://www.clir.org/pubs/execsum/sum133.html). Unlike the US legislation, the Commission’s proposals include a ‘use it or lose it’ provision, by which if after 50 years sound recordings are not reissued by the rights owner copyright reverts to the performer(s), and if they are not then reissued by the performer(s) copyright lapses–but in its current form the provision appears quite unworkable, and in any case it would not apply to recordings produced from now on.

There is a great deal of coordinated opposition from copyright lawyers and other experts, including some musicological groups, but there is no substitute for people making their views known to their MEPs. If you care about access to the heritage of recorded music, either now or in the future, then please read the following circular from the Open Rights Group.
—————————
Nicholas Cook, FBA
Professorial Research Fellow, Royal Holloway, University of London
Director, AHRC Research Centre for the History and Analysis of Recorded
Music nicholas.cook@rhul.ac.uk

—–Original Message—–
The European Parliament has begun preparing its opinion on the European Commission’s flawed proposal to extend the term of copyright protection for sound recordings. MEPs have been appointed to act as rapporteurs, who will guide the committees that will recommend how Parliament should vote. Your MEPs need to know that their voters are concerned and paying attention – get in touch with them to let them know your concerns. To help you do this we’ve prepared a guide to lobbying your MEPs (1) and a briefing pack (2).
(1) http://www.soundcopyright.eu/system/files/MEP+lobbying+tips.pdf
(2) http://www.soundcopyright.eu/system/files/Briefing.pdf

Lobbyists for term extension are making the case to MEPs inside the European Parliament right now. But your voice is stronger than any lobbyist. We can’t overstate it: the most important thing you can do to stop term extension is to let your MEPs know your concerns so they an see and hear your side. Be aware also that MEPs can be deluged with information on many topics and appreciate being treated as individuals.If you want to travel to Brussels to meet your MEPs and need help – hit reply. If you have a story or an interest that we should know about – hit reply. Now is the time to speak, so use your voice wisely!

We’ll keep you updated of major developments, but you can track the proposal on the Parliament website (3) and the details of relevant committees and MEP members are also available (4). Currently Legal Affairs (JURI) are leading. Three other committees – Internal Market and Consumer Protection (IMCO); Industry, Research and Energy (ITRE); and Culture and Education (CULT), will also help.

(3) http://www.europarl.europa.eu/oeil/FindByProcnum.do?lang=3D2&procnum=3DCOD/2008/0157
(4) http://www.europarl.europa.eu/activities/committees/committeesList.do?language=3DEN

In the meantime the Directive is also being discussed by representatives of Member States in the Council of Ministers. And criticism of the Commission’s proposal is emerging all over Europe.

The world leading Max Planck Institute for Intellectual Property Law (5) in Munich, has released a statement concluding that prolonging the term of protection “cannot be justified from any point of view.” (6)

(5) http://www.ip.mpg.de
(6) http://www.ip.mpg.de/en/data/pdf/stellungnahme-bmj-2008-09-10-def_eng.pdf

Professor Bernt Hugenholtz, Director of the Institute for Information Law (IViR) in Amsterdam, and one of the Commission’s own advisers, has accused Commission President Jose Manuel Barroso of intentionally misleading policy-makers with the proposal (7).

(7) http://www.ivir.nl//news/Open_Letter_EC.pdf

Pekka Gronow, sound archivist, author of “An International History of the Recording Industry”, and adjunct professor of ethnomusicology at the University of Helsinki, has written and concluded that performers benefit very little from the proposed extension (“in most cases the resulting sums will not even cover bank charges”). (8)

(8) http://blogit.yle.fi/node/2234

And of course, ORG have written to the authorities in the UK, explaining exactly why the proposal makes no sense (9).

(9) http://www.openrightsgroup.org/uploads/080829_ukipo_ectermextension.pdf

The Sound Copyright Campaign=20
Run by the Open Rights Group and EFF

———————————-
One other link (added by Nicholas Cook): statement from the Centre for
Intellectual Property Policy & Management, University of Bournemouth:

(10) http://www.cippm.org.uk/publications/index.html

Thanks,

IMSLP is back online

They promised it would all be back up and running by 1st July, and it is. This is fantastic news, both for music and for the public domain. The open letter announcing the reopening is well worth a read.

It is with great joy that I bring you news of the resurrection of IMSLP. We continue to believe that the access to our culture and the Arts is a fundamental right of every human being. And holding this belief, we continue in our journey towards the goals of providing public access to the musical public domain, and the facilitation of the study of music, the understanding of music, and the enjoyment of music.

[…]

IMSLP is very much willing to collaborate with music publishers in the promotion of new music, under a Creative Commons or similar license. I know full well how little of the overall profits come from selling actual scores (and I have no evidence that IMSLP affects those profits to any great extent, if at all), and how much comes from royalties from performances. Would it not make much more sense to use IMSLP to promote new composers, instead of attempting to sue IMSLP for composers who will be entering the public domain all over the world very soon, if not already? Considering the fact that IMSLP contributors and users are made up mainly of musicians and music lovers, isn’t IMSLP precisely the audience that music publishers should be working with?

I am heartened by the fact that, indeed, many music publishers have seen IMSLP as a friend, and have indeed used IMSLP in the promotion of their contemporary composers. Perhaps ironically, IMSLP’s resurrection is due in no small part to the help of several of these publishers.

However, permit me to make one point clear here in no uncertain terms. IMSLP will continue to oppose organizations who attempt to limit and restrict the already much-shrunken public domain. A primary goal of IMSLP is to facilitate public access to the musical public domain, and thus IMSLP will resist strongly any attempts to shrink the public domain, and will raise the alarm among the general public should there be such an assault upon the world’s cultural heritage.