When it comes to music copyright the law is confused, and acts against the spirit (if not the letter) of laws designed to protect our inalienable rights as human beings.
I don't know of any law in any country that describes my right to listen to what I want, when I want, where I want and how I want. But there should be such a law. That there isn't one is down to a series of basic assumptions on the part of the law makers that "inalienable human rights" (however they are described) should include the right to your own ears.
A quick look at the Wikipedia entry for Human Rights gives the following broad definition -
Human rights refers to the supposed "basic rights and freedoms to which all humans are entitled." Examples of rights and freedoms which are often thought of as human rights include civil and political rights, such as the right to life and liberty, freedom of expression, and equality before the law; and social, cultural and economic rights, including the right to participate in culture, the right to food, the right to work, and the right to education.
Even in their very broadest application, the rights to participate in culture, to freedom of expression and equality before the law, would seem to be the foundation for an entirely sensible approach to how we deal with our rights to listen to and reproduce sound.
But frankly, the law as applied is crazy.
A musical event is an abstract construction of wiggling air molecules. It is pressure waves, much like the breeze blowing through tall grass. Nothing moves, nothing is transmitted except the idea of the music - a tune, a beat, a word.
Of course, the expression of that idea can be captured. It can be written down using notation, or it can be recorded, but let's think first about the situation that pertains to the live performance of a musical idea, where no recording or notation is involved.
A musician makes the air wiggle. The ears of the listeners respond, sending signals to the brain that are interpreted as "music". How can such a relationship be owned by anyone other than the participants?
Well, it can. The law says it can. If the idea behind the music originated outside the performer/listener circle then the performer needs the permission of the originator before he makes the air do that particular dance.
This requires that the dance be identifiable as a distinct entity from all other dances, which is where things get really crazy.
The situation is so perverse that even where the music being created is entirely contained within the performer/listener circle, if it bears a resemblance to any previous piece of music ever created then the originator of that previous work has a claim on the new piece of work.
The inevitable consequence of this is that eventually every idea that can be musically expressed has already been copyrighted. Any "new" piece of music is subject to copyright before it is even written.
Sound crazy? Sound impossible? It gets worse.
Let's say that you create a piece of music, and ninety per cent of the musical ideas in it have never been heard before, but ten per cent of what you think is an entirely original work bears an uncanny resemblance to something that was written and recorded twenty years previously.
The originator of that earlier piece of music can argue in a court of law that you owe him any and all profits made from your piece. All. Not just the ten per cent that he says you stole. And the court will not throw him out on his ear. They will listen.
Whether or not the court rules in his favour will depend upon the exact circumstances of the case, but the point is that your right to express yourself is stifled by this ill thought out legal process.
That is part of what Kembrew MacLeod means when he talks about the denuding of the cultural commons.
When music is recorded the situation takes a sinister turn, with ordinary people like you and me being fined huge amounts of money for doing nothing more evil than sharing their favourite music with other music lovers.
If I choose to express my inalienable human rights by sharing, why do the Record Industry Association of America and the British Phonographic Institute and their pit-bull enforcers the Federation Against Copyright Theft call it stealing, putting it into the same bracket as car jacking or bag snatching?
A recording of wiggling air molecules, played back through an electronic device, recreates those wiggling air molecules for all to enjoy. What a marvellous innovation! What a boon to civilisation!
What a curse to the poor musician whose work is distributed free of charge to millions who now don't have to turn up at the concert hall to hear him play. The poor musician, whose CDs are left languishing in the warehouse because no-one wants music any more. Poor record companies, whose hard working staff will soon have no jobs. Poor studio owners who will have no musicians to work with, and no market for their recordings even if they could make any. Poor customer, who will not be able to hear great quality music any more!
That's what the unholy alliance of the RIAA/BPI/FACT would like you to think, but they are wrong on every count. Every one.
Live rock venues in the UK have never thrived as they do now. There are more bands touring than the gigging infrastructure can support. New venues are opening up all the time.
Official music sales do not account for the many millions of independent releases sold on line or in the form of home made CDRs. There is MORE music around than ever. More bands. More independent record companies. More bedroom outfits. More music.
No major record company has gone bust since the pirating scares of the 1970s. Anyone remember the "Home Taping Is Killing Music" campaign? In fact, the counter slogan that read "Home Taping Is Skill In Music" was much nearer the truth.
There are more professional quality studios than ever before, and everyone with a PC can have one. More guitars are sold than ever before. More microphones. More mixing desks. More music software.
It begins to look like music is alive and well, musicians are alive and well, great recordings are still being made, and music is as much part of the fabric of our daily lives as it ever was.
So, why do the RIAA/BPI/FACT complain so hard?
Because the market, their precious market, has determined that the value of music is less than the record companies current antediluvian business model can sustain.
Fifteen Great British Pounds for a CD you might not even like that much, or a free download. The market has decided.
Find a band you love, download the album for free three weeks before it hits the shops, then support the band by ordering it through their web site, and go and see them live. Why do those bands need record companies? They don't.
That's what all of this is really about. The record industry will survive, but it will have to morph itself into something that meets the demands of its customers. They had become used to having it all their own way, owning the product and the sole means of distribution.
The internet has democratised the music business, and the old dinosaurs don't like that. Their cosy monopoly of excess and exploitation is ending.
But no-one, no-one bucks the market. No matter how many grandmothers they send to jail.