Copyright and the future of music

Last week, when Paul Brust was visiting class, he mentioned that he does not have a website. His reason was that he did not want to open up his music to theft and copyright violation by posting it so openly online. He cited other composers who have found bits of their compositions sampled in hip-hop beats after posting on their website.

On a side note, the fact that music by Brust’s collegues has ended up in hip-hop speaks nicely to one of Ivan Hewitt’s points this week. Addressing what he calls classical music’s “un-classical” side, he talks about non-functional repetition, first with regard to minimalism and rock, and then with regard to hip-hop and some art music such as Amelia, Flying (performed by the Bang on a Can All-Stars). In the latter case, “even the bare requirement of euphony is dispensed with... Because the mere fact of 4x4 regularity is a sufficient defining feature, anything can function as a ‘lick,’ even a fragment of a Schoenberg tone-row.” (Hewitt 2003: 230-1) Indeed, Brust’s experience proves the point: non-tonal music can and has been appropriated into hip-hop.

Of course, Brust’s opposition to this is not that he believes that non-tonal classical music and rap shouldn’t mix. Rather, it is that these particular uses were not authorized by the composers themselves (though I would be curious to hear how various composers would react if a hip-hop producer requested the rights to sample their music - and was willing to pay accordingly. Perhaps this contains the makings of the next great underground mixtape; I’ll call it Kanye vs. Kurtag). The response I offered at the time was my summary of a blog post by Andrew Dubber, Reader in Music Industries Innovation at Birmingham City University. The short version is that the people who steal your music online were never going to buy it in the first place. This statement is a bit willfully perverse, so I will let Dubber explain. Dubber begins by explaining a distinction between “unauthorized copying” and “piracy.” While unauthorized copying includes burning a CD for a friend, or downloading a file from peer-to-peer networks such as Limewire, piracy means selling copies for personal gain. Actual piracy is much rarer than unauthorized copying, so the real question focuses around copying:

When asking ‘Should I be worried about piracy?’ the real underlying question is about whether there is a significant potential loss of income as a result of unauthorised copying. And here we’re talking about what’s generally referred to as the ‘Lost Sale’.

The Lost Sale is the idea that because someone came into possession of a track of yours as an mp3, then that is one less copy that will now be sold, thereby depriving you of your rightful income. (Dubber 2008: http://newmusicstrategies.com/2008/04/03/should-i-be-worried-about-piracy/)

One would do best to read Dubber’s entire post, as it is not very long. However, his three conclusions as to why the “Lost Sale” concept does not work are:

1) People who share your music are recommending you to people who respect their taste and opinion;

2) The vast majority of people who have unauthorised copies of your music would not have ordinarily paid for it anyway;

3) Do you really want for people who cannot afford your music to be prevented from ever hearing it? (Dubber 2008)

As a solution for those who are worried, Dubber suggests that if mp3s do not effectively work for an artist’s profitable distribution because of unauthorized copying, that the artist should instead use mp3s for promotion and use CDs or concert tickets as their profitable realm. This is all well and good in theory, but of course mp3s are the primary profitable source of music. We seem to have no choice but to take the risk of copying once we go online.

These concerns about artists copyright are, as we know, very old. The first music patents date back to the early renaissance. This said, the purpose of early music copyright was very different. Most of the earliest copyright agreements were in fact patents for music printing technology. The printers held the patent to ensure that no one else would have the technical means to print the music they were printing. The emphasis was on the means of production, rather than the artistic rights of the composer. Even in the renaissance, pirate copies abounded, especially as printing technology became more available. By the time William Byrd and Thomas Tallis secured their music patent, however, the emphasis in patent language was placed squarely on the composers. Currently, the democratization of computers and the internet allows anyone to become a publisher. Patenting the means of production has become a non-issue; on the other hand, unauthorized copies have become exponentially more available.