Abstract
The associated issues of copyright protection and digital rights management are pressing ones these days. Particularly for the music industry, there is a growing trend among consumers to download music illegally via torrents without giving a second thought to the ethics or legally of their actions. On the other hand, many have suggested that unreasonable laws and the length of time that copyrights last explain the many copyright violations we see today. This essay will examine the nature of copyright law and its original intended purpose in English common law, as well as how the founding fathers of the United States saw the issue. The following also looks at several examples of copyright violation (as well as “fair use”). The current United States laws and punishments for copyright violation are examined, as well as the much harsher ones that the United States is supporting on the international stages in the form of the TPP. Finally, there is the question of whether current laws are out of date, insufficient or excessive.
While most of us might agree that the creator of a specific work, including a piece of music, should have some degree of copyright protection so that they control how that work is used and our properly compensated for its use. In the modern digital age with so many people choosing to download music illegally from torrent sites, copyright laws might seem inconvenient and even relatively insignificant. However, the concept of copyrighting materials of various sorts has been a major part of Western law and socioeconomics for centuries. The following essay will examine the part that copyright plays in protecting the works of musicians and composers in a digital world.
Stealing Music
The theft of music does not always involve digital downloads and copying of songs by individuals for their own use. For example, Sam Smith (a relatively unknown English musician) wrote a song (Stay with Me) that closely resembles the one created and recorded by American musician Tom Petty (Rayman, 2015). Following the release of Smith's song, Tom Petty and his representatives chose to sue Smith for copyright violation. In the end, Smith and his representatives decided to settle out of court, paying damages and royalties to Petty.
For the most part, the average person does not have the financial resources necessary for carrying out a lengthy and expensive legal battle over copyright. This is rather ironic, since many of these same individuals choose to download music from illegal torrent sites without any concern about anyone's copyrights. In the digital era, it is far easier and more common for someone to violate copyright by downloading a song or streaming a video and then (in turn) illegally pass that content on to someone else either across the country or around the world. Modern day regulations and the enforcement of such regulations are woefully inadequate to the changing world around us. Given this reality, the logic underlying copyright and our preconceptions about DRM (Digital Rights Management) should perhaps be re-examined (Rosenblatt, 2007). Is copyright and antiquated notion that no longer suits modern times, or can it be modified or improved to better fit our age and the international community?
In the past, copyright laws have applied only to those countries in which the individual or company copyrighted the material in question. This means that a copyright on a song in the UK would not have had any relevance outside of that country. But this is no longer the case. Nations around the world have agreed to a series of accords regarding copyrighted material, including music. These agreements mean that copyrights can exist across international boundaries.
One of the primary purposes for these agreements among nations is to promote international trade and protect property and wealth. The digital world and the modern music industry exist because of such agreements. However, the same digital technology may be making such agreements difficult to enforce. Nevertheless, these various agreements have accelerated the pace of globalization and transformed economies around the globe, including that of United States. These agreements are often massive in scope and extremely detailed, and the governments that are signing them employ them as a tool to push their own economic objectives.
When it comes to the issue of digital copyright as applied to music, perhaps the most significant and impactful agreement made over the last few years is the TPP (Trans-Pacific Partnership.) Signed in 2015, the TPP required for literally decades of intensive negotiation (Greider, 2015). It is based on (and is an expansion of) a previous agreement known as the P4 agreement. The signatories for this former agreement were Brunei, Chile, New Zealand and Singapore. The signatories for the TPP itself are Canada, Mexico, Japan, Australia, Brunei, New Zealand, Vietnam, Singapore, Peru, Chile, Malaysia, and the United States.
One of the principal aspects of the TPP is that the signatories have committed themselves to offering lower import tariffs for the other nations that are party to the agreement. While on the surface this might seem like a good thing, a number of groups have objected too many aspects to the TPP. One of the most debated features of this agreement is the way that it will impact the use and protection of digital content.
In point of fact, the question of protecting intellectual property was one of the principal disagreements among those signing the TPP and one of the reasons that it took so long to finalize the agreement (Ellis, 2015). During the negotiation discussions, there were endless debates about the specific nature of intellectual property and how it could be effective in the long term. United States in particular wanted very strong legal protections for intellectual property and applied a good deal of pressure on the other parties to convince them to agree to its approach.
Problems Caused by TPP
For the average citizen (whether in the United States or elsewhere), the precise goals and provisions of the TPP are obscure and largely unknown. This is in part because the public did not have access to the documents regarding the negotiations themselves and even certain features of the signed treaty. However, in 2015 WikiLeaks released information regarding the TPP, and in particular those aspects of it related to the enforcement of intellectual property rights. Even prior to this, the founder of WikiLeaks (Julian Assange) had criticized the approach that the TPP was taking to intellectual property, but the release of this information publicly caused a firestorm. WikiLeaks was essentially accusing major corporations (such as Disney) to use these secret provisions within the treaty in order to extend and expand their monopolistic practices with regard to intellectual property.
Although these accusations by WikiLeaks might appear to be exaggerated and overblown, the truth is that many other experts who have examined the treaty agree with WikiLeaks on this point. Those critical of the TPP see it as an instrument designed to protect big business, rather than defend the rights of individual citizens in the member nations (Fergusson, 2014). Critics of the TPP particularly object to those aspects of the treaty that relate to DRM and the protection of digital content from copying and distribution.
The laws protecting copyrights have a long tradition in our society and a number of legal precedents. Any enforcement measures taken against those who violate copyright derived from these traditions and precedents. The logic underpinning these laws is that our economic system should offer encouragement for musicians, writers and artists to create new and innovative content for consumers. Thus, copyright laws (in theory) help to foster new products and new works of art. This not only benefits the economy by helping businesses, it also helps consumers by providing them with new content that they can enjoy.
The last few decades have seen a revolution in the entertainment industry because of the development and growth of the Internet. This has had a major impact on the dual issues of DRM and protection of copyright. It is remarkably simple for anyone to get on the Internet and either download or distribute music to others via various torrent sites. This is made copyright violation much easier (and much more frequent) than it is ever been in the past.
During the TPP negotiations, the representatives from Canada objected to proposals from the United States regarding the enforcement of copyright law. The proposals in question related to measures the United States had proposed for criminalizing copyright violations. What the United States was proposing is that even those copyright violations not resulting in commercial gain would still be classified as criminal copyright infringement. Traditionally, nations did not treat these kinds of private and noncommercial copyright violations as a criminal offense.
It is important to note that there is a significant difference between objecting to criminalizing every act of copyright violation and legalizing copyright violation. Canadian response to changing copyright laws helps to illustrate this difference. Recently, a number of organizations in Canada demanded that its prime minister to maintain its copyright enforcement laws as they are. Canada has recently introduced a new series of laws designed to address the question of individuals using copyrighted material for noncommercial purposes. These laws are far more lenient than what the US would prefer. For instance, Canadian law now provides for a content category known as a "mash up exception." This means that individuals can combine copyright material in a new way, as long as it results in noncommercial “mash ups.” This is not dissimilar to the mix tapes that people used to make of their favorite songs using cassette recorders.
As currently formulated, Canadian law does not provide for the prosecution of an individual who simply shares a copyrighted file with someone else (something the TPP provisions would require). In addition to this, the regarding copyright violation and the more stringent punishments imposed by the United States could have serious and unintended consequences. It could even become absurd and unenforceable, since someone could (under these provisions) theoretically be prosecuted for sharing and Internet meme.
The Implications of US TPP Policy
Although the United States has been the strongest voice in proposing harsh and extremely broad copyright enforcement laws for the TPP, it has (somewhat hypocritically) very lax and lenient policies within US borders. United States has a policy known as "fair use" that is extremely different than what it is proposing others sign on to in the TPP (Sirabella, 2011). Whether United States intends to uphold provisions of the TPP in this regard or adhere to its own national laws is still an open question.
Under the fair use copyright policy, the rights of original creators still enjoy protection. He or she holds exclusive rights to the production, use and sale of the work in question for a given period of time. Because of this, any other party that wants to use this work has to have the permission of the copyright holder prior to doing so. With music, this generally means licensing and provisions for royalties. On the other and, fair use does allow individuals to make use of copyrighted material as long as they do so in certain defined ways. For example, transforming a work in a way that alters it significantly can (in some instances) make it available for fair use.
“Parody” is another example of fair use. Among of the best examples of parody in music are the works of Weird Al Yankovic. Yankovic has made a career writing and performing parodies of popular songs, including several Michael Jackson songs (Hajdu, 2014). Yankovic's frequently chooses to ask for permission, but he does this as a courtesy and is not legally obligated to do so. This is because fair use policy allows for the sale of songs created as parody.
The Copyright "Term"
Another major bone of contention with regard to the US position on the TPP is the "term" in which a copyright is in force. The copyright "term" refers to the period of time in which a musical (or other) work enjoys protections under copyright provisions. A central feature of a copyright current is that (regardless of how long it is in force) it ultimately expires so that the work in question can become available to the public in the "public domain." Anyone can use any work in the public domain for any purpose whatsoever. They can download, copy, redistribute or even sell such a work. It should be noted though that those reselling a copyright expired work will not themselves be able to copyright it again.
Within the United States, the precise term for copyrighted materials (including songs and compositions) can be difficult to determine. Moreover, most people argue that the terms currently in place the United States are far lengthier than they should be. At this time, any work created prior to 1923 is now in the public domain (Hirtle, 2012). Furthermore, any items published before 1963 that did not have their copyright renewed are also in the public domain. To make it even more complex, works published before 1977 and not officially copyrighted are in the public domain. Lastly, any items published after 1978 but prior to 1989 that were not copyrighted are in the public domain. Clearly, one consequence of having such an overly complex assemblage of policies is that it is very difficult for individuals to determine whether something is in the public domain or not.
Fortunately, for newer works created and copyrighted the United States, the terms involved are relatively straightforward and easy to understand. For instance, a new song created today has a copyright that is in force 70 years beyond the lifetime of its creator. This means that if Willie Nelson writes and records a song today, that copyright will still be in force 70 years after Willie Nelson's death. Many people and groups consider this copyright time to be excessively long, particularly given that it not only offers no additional benefits to artists, it also actually discourages creativity. Finally, given the ease with which people can copy and disseminate copyrighted material in the digital age, this copyright term is almost certainly unenforceable.
It seems obvious that such lengthy terms and draconian and enforcement measures are being implemented in order to protect the interests of large corporations, many of which own the copyrights to countless musical compositions. Such a situation is in complete opposition to the original intention of those who wrote the Copyright Act of 1790. When this law was established at the beginning of the United States, a work could be copyrighted for 14 years and renewed (once) for 14 years. Beyond that, the work would be in the public domain. Given that a work created by a musician or composer could now remain in copyright for more than a century, the original copyright term involving a maximum of 28 years seems far more reasonable and workable.
Why Copyright Terms Expanded
One of the primary reasons for the changes that have taken place in copyright terms over the years is a corresponding change in the United States political system. In the last century or so, lobbying has become a major business in itself. Countless lobbyists tried to coerce the President and the Congress into instituting policies and laws favorable to them. Corporations have in this way come to dominate the nation's legislative agenda and determine many of its decisions. As a result of this, big business has been able to convince Congress to regularly increase and extend the copyright terms for musical works (as well as other materials). This is why many songs and musical compositions that should long ago have been available for public use (including free downloads) are still held tightly in the grasp of rich corporations.
Corporations in the United States (and in other countries as well) use such tactics to reduce their own costs. For example, if copyright terms were more limited it will require corporations to spend more on creating new content to sell. This is a key aspect of the problems related to current copyright law in the United States, in that it actively discourages creativity by artists or corporations (Stokes, 2002). Instead, these large corporations can simply sit back and allow money to roll in for things they (or the artists working for them) did decades ago.
In conclusion, it seems clear that copyright law in the United States is having a negative impact on society and is damaging the creativity of artists, writers and musicians. In addition, the strict copyright enforcement and excessive terms demanded by the United States for the TPP will only make the situation worse. Clearly, no one would suggest eliminating the concept of copyright in itself. The creative individuals creating music, literature or art should certainly be able to expect compensation for their work for a limited time. The debate revolves around the degree of copyright protection, the length of the terms and the consequences for violation. Copyright laws as they exist today have expanded far beyond what is necessary or what the authors of these laws originally intended when they were established 200 years ago. Current copyright laws in the United States (and as envisioned in the TPP) serve as a barrier to creativity and the enrichment of society.
References
Ellis, K. (2015). Doubling down on TPP. WWD, 209(88), 35.
Fergusson, I. F., McMinimy, M. A., & Williams, B. R. (2014). The trans-pacific partnership (tpp) negotiations and issues for congress. Current Politics and Economics of South, Southeastern, and Central Asia, 23(3), 369-443.
Greider, W. (2015). This year’s “free trade” scam. Nation, 300(4), 22-25.
Hajdu, D. (2014). The Parody Racket. New Republic, 245(17), 52-55.
Hirtle, P. B. (2012). When Is 1923 Going to Arrive and Other Complications of the U.S. Public Domain. (Cover story). Searcher, 20(7), 22-28.
Rayman, N. (2015). Tom Petty has no hard feelings about Sam Smith song. Time.Com, N.PAG.
Rosenblatt, B. (2007). DRM, law and technology: An american perspective. Online Information Review, 31(1), 73-84.
Schewel, M. (2013). Leaked TPP IP text shows at least one provision inconsistent with U.S. law. Inside US Trade, 31(46) 1.
Sirabella, N. D. (2011). Separating the sheep from the goats: celebrity satire as fair use. Cardozo Law Review, 33(2), 773-805.
Stokes, S. (2002). Creativity challenges copyright. Managing Intellectual Property, (116), 58-63.
