Music Rights - Artistically Wrong?

As an artist I am interested in making a living with my music. It would be nice if I could actually create something and get paid for that creation. On the other hand, as an artist I am also interested in having what I have created heard, enjoyed, experienced. While I need to be able to eat/survive, I also have the need to share my creation(s) with the greater world. The selfish side of me also thinks that if someone is going to make money from my music, I ought to get a share of the profits (basically, I'm against someone stealing my music, making a fortune and I end up with nothing). So, how to I ensure I get a fair share of the profits from my music and yet still get my music out the public that wants to hear it?

The issue of copyright and its impact on music is again at the forefront (if it ever left). There is a wonderful article by Mike Masnick on techdirt which suggests the imposing of Copyright protection on classical music did little toward protecting the artists and actually may have stifled the creative process. He sites several articles including the paper by Frederic M. Scherer on "The Emergence of Musical Copyright in Europe from 1709 to 1850" which shows how countries with copyright protection undermined musical talent and in cases like Verdi reduced musical output.

Several Years ago Napster and Metallica got into a legal battle over the rights to download (share) music. With a huge bank account (including the accounts of the record industry), the lawsuit was as much a scare tactic as an attack on the Napster. Napster's counsel, Laurence Pulgram, at Fenwick & West, LLP in San Francisco, stated:

"This action raises the same copyright issues as the lawsuit filed against Napster by the recording industry in federal court in San Francisco. The complaint reads like it was written to inflame the press and intimidate universities rather than to present legal issues to the court. It is also hard to understand why plaintiffs -- a group located in the San Francisco Bay Area -- saw it necessary to file a separate action in Los Angeles."

Metallica eventually won the suit and Napster was reduced to a minor player in the download music industry - while numerous other sites have popped up and become quite successful. Many of these sites are "selling" legitimate downloads of music (such as iTunes) and making a huge profit off of the technology, but there are still hundreds of rogue sites offering illegal downloads of music and/or music sharing sites which allow users to "share" songs from their systems with other users. This sort of sharing is technically illegal, so when these sites are found, they are shut down. But they pop up faster than the legal action against them can stop their activity.

iTunes (an Apple product) used to include digital rights management (DRM) technology on their music preventing people from playing a song downloaded from iTunes on more than 5 devices. What Apple found was their sales of downloaded music were not what they anticipated. They felt is was the restriction that was affecting sales. Eventually they removed the DRM technology from the music and their sales are booming. This doesn't mean the music is free to download. It just means that once you have downloaded it, you can share it where ever you want. EMI followed suit considering dropping the use of DRM.

EMI, which has previously released tracks by Norah Jones and Lily Allen without copyright protection, shelved plans to drop DRM on a more widespread basis after iTunes competitors refused to make “risk insurance” payments designed to offset potential losses that would result from the move. It is unclear whether Apple has made any such payment. Other labels, including Universal Music and Song BMG, have experimented with offering music without DRM, but none has pursued the strategy as aggressively as EMI. - the TimesOnline

Downloaded films, television shows, games and software are all included in this illegal trade. Software companies have gone to great lengths to prevent piracy and still piracy happens. On the other hand, there are organizations like Mozilla and projects like Google's Open Source that are using open source models and free downloads to promote their products and offer users a greater sense of control over the product's direction. These open source models have proven successful against large corporate companies like Microsoft (the greatest example of copyright profit making).

A similar model in the music industry are websites like YouTube which allow even the smallest artists to gain widespread popularity for their music. YouTube allows thousands of people to view music videos and be exposed to artists long before those artists have major concerts or big names. The popularity of an artist is driven by public appeal. And yet, Britain is trying to ban Music Videos from playing on YouTube because the record companies are not getting enough money for the viewings.

What the record companies don't seem to understand is the power of marketing in this manner. YouTube videos can't be downloaded onto your iPod. So, if you like an artist's video/music, you'll have to go to some other site to download it (or always just view it on YouTube - which isn't the best quality). Record companies think people are not going to buy the music if they can just watch them for free and yet, that has time and again proven to be the opposite case.

When cassette tapes came out, record companies complained at the illegal duplication of music was too easy. They tried to prevent the ability to record music off of the radio by devices that had cassette recorders and radios combined. Yet, the result of the invention of the cassette tape was an explosion in the music industry sales on just this type of media. The creation of the CD had the same argument with record companies fighting against the release of CD burners to the general public and yet CD's were again a major boon for the record companies.

Yes, there are millions of "illegally" created tapes and CD's out there. But the music is getting heard and the record companies are making record profits. Artists, who can't get signed by a big record company can make their own CD's and thus have a chance to get their music out there, whereas before they were dependent on the record companies for exposure. And maybe that's what the record companies are really against - the small artist avoiding the record companies all together.

What I am suggesting is copyright protection, while it is presented as a means of protection for the artist, is really a protection of the major corporation and their monopoly of profit making. Copyrights are only really effective for those with enough money to legally go after those that abuse these rights.

An example of this is Disney and the use of Winnie the Pooh. The battle to determine who deserves the profits from Pooh has been in dispute for nearly 50 years. Pooh is Disney's most profitable character (yes, even more so than Mickey Mouse) and yet they have continually tried to prevent money going to the "rightful" owner of the Pooh character. What makes this whole situation worse is that BOTH Disney and Stephen Slesinger, Inc. are incredibly well to do so what they're really arguing over is how many millions can they get.

Another element of control in the music industry is the limitation of downloading according to region. Record companies occasionally make tracks available in certain regions, so if you live in the UK, but the track was only released in the US, it is not available. Really savvy users know how to mask their IP address and get around the regional restrictions just like Nintendo users figured out how to break the region control on the PlayStation and hackers learned how to share music with DRM controls by transferring them via Bluetooth devices.

Yes, breaking the region restriction is technically illegal, just as breaking the copyright protection on software is illegal and duplicating music CD's is illegal. There will always be those out there who break the rules. These people are not my concern. While the record companies would like you to think these "pirates" are a huge impact on the industry, an industry which is earning more than ever before, an industry which has a greater social impact and market force than any other industry and contains more recognizable faces worldwide than any other (yes, even more so than film), the music industry is only going to continue to grow - with or without copyright protection.

Artists want their music heard, but they also deserve to be paid for the work they've done. It is not surprising to me that most people (the general public) don't have a problem in paying for the music they listen to. The real question is, who is really profiting with copyright protection? I suggest it is not the average artist, but rather the corporate machine that profits by the limitation of the arts.