Hi, Folks -
From a Google cached copy:
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Where does 'Public Domain' actually begin...?
Posted By: hobie
Date: Wednesday, 24-Sep-2014 04:08:20
In Response To: The Letter (Swami)
Thanks, Swami. :)
The idea of copyright laws is to encourage creation and innovation. Article I, Section 8, Clause 8 of the Constitution empowers Congress "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
Let's say a band of musicians and some engineers get together in a recording studio owned by a major "music group" company. Together they labor for some undefined period of time until everyone is satisfied with the _performance_ that has been captured, digitally or on tape.
What is covered by copyright, and who is the copyright holder?
In the world as it stands today, it's generally the music company that contractually holds the copyright. But, to what? Is it to the original artist's creation, the written music? Or is it the recording of the _performance_ made possible by the musicians and engineers together, in that studio, using that equipment?
Apparently it is to that recorded performance, with any rights accorded to the engineers and musicians determined by contractual arrangements with the music company copyright holder.
Okay. :) Now let's say thousands of records or CDs are made, and those are distributed to "radio stations". Let's say a local station plays its copy of that singular performance. Then hundreds of thousands, or perhaps millions, of in-the-air copies of that singular recording suddenly go out into the ether.
Are those in-the-air copies now in the public domain? Is it allowable for listeners to make copies of those copies, on tape or digitally, and later to play them back and enjoy them?
Some would say no, but I think an argument can be made that at this point, with the music wafting out of our radios into the air, what we have is no longer the original, protected recording of the performance. Rather, it's a second-generation something, affected by the station's broadcast and our reception on a costly or inexpensive radio set.
I think it could be argued that only the "master", only the original recording made at the company's expense and in its facilities, of a singular performance of the piece, and with specific contractual terms involving the company, engineers (employees?), and musicians, is what's covered.
Viewed that way, the copyright holder music company holds the right to utilize that "master" and make as many copies as it wants. It's a _copy_ of that master that is delivered to the radio station, and a copy of a copy that goes out over the airwaves, quite possibly with lesser quality than what's on the "master". If those in-the-air copies were truly covered by copyright, we'd owe something for having listened to them. :) Why should it be seen as "infringing" copyright, then, if we happen to make our own recording of an in-the-air copy?
Carry the idea forward. What's the actual copyright status of an mp3 copy of a copy of the original master recording, uploaded to YouTube? Warner Music Group and others would claim it's still theirs. Is it?
"But what about the artist?" you say. :) Good question. Is he or she the one realizing handsome profits from his/her creation? Or is it Warner Music Group and others who are?
And what about the fact that what the artist (composer, musician) may profit from his creation is affected by how much or little promotional effort is put forward by the music company copyright holder?
How long did John Fogerty have to wait before he finally received the promised and rightful return from Creedence Clearwater Revival recordings? Answer: about 25 years. :) And only then because the music company copyright holder had passed finally into the ownership of Norman Lear who saw it as the honorable thing to do. (Probably profitable also; interesting that honorable and profitable might actually go together. :)
I've read that most musicians, except for those at the very top of the profession, earn most of their money not by record/CD sales but by way of concerts and ticket sales. One could argue, then, that giving copyrights over to the music companies is not such a good deal for the artist. Remember Michael Jackson's public statement that then head of Sony Music Group, Tommy Mottola, was "the devil"?
https://www.youtube.com/watch?v=Wt6zVypo72E
Per Wikipedia:
[Tommy Mottola] also worked with Michael Jackson from the time he began recording his "Dangerous" (1991) album. Jackson would later state that his relationship with Mottola dissolved based on corruption in Mottola's working practices. "The recording companies really, really do conspire against the artists", Jackson said.[3]
So, where has all the copyright protection ended up?
Recently Al Yankovic released his new album, "Mandatory Fun". In the week or so leading up to the album's release, he made available 8 music videos of songs on the album, for free, on Internet (where people could, if they wanted to, make mp3s or video recordings of those music videos). The result? Wikipedia says:
Mandatory Fun was released to strong critical praise and was the #1 debut album on the Billboard charts the week of its release, buoyed by Yankovic's approach for releasing eight music videos over eight continuous days that drew viral attention to the album as described below.[40] It became Yankovic's first #1 album in his career.
What, you mean there's something cool about giving stuff away? You mean, "As ye give, so also shall ye receive?" :)
Indie group Dangermuffin seems to think so, too. :) They provide their music FOR FREE on Internet, for listening online or download:
http://dangermuffinmusic.com/music/
...though of course you're welcome to buy the CD if you'd prefer. :) That doesn't mean it would be a good idea to grab all the songs and offer your own CD of the albums commercially - and, really, why would you? The songs are already available for anyone who might want to create his own 'mix' CD, without having to pay you for it. :)
On the other hand, Craig Ferguson in hosting The Late Late Show discovered one is not allowed to sing more than 8 notes of "Happy Birthday to You" on TV, or else a royalty payment of $700 must be paid.
Really? "Happy Birthday to You", the song all of us have sung and know by heart, is not "public domain"? The matter is in dispute. Warner/Chappell Music has said they hold the copyright, and that it does not expire until 2030. They were sued in 2013 for false copyright claim. That case is still pending at time of this post.
Bottom line: I think it's apparent that the old and current model of copyright protection is flawed. As with so many things, it's not necessarily the creators and innovators who are protected by it, but the middle men, which is not really what the Framers were going for in Article I, Section 8, Clause 8. It's time we should rethink this. :)
--hobie
