The United States Constitution states, “The Congress shall have power … 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” (Article I, Section 8). This is known as the Copyright Clause, which serves as justification for US copyright and patent laws. There are two main ideas that need to be understood before discussing copyright law any further. The first point is that the Framers of the US Constitution did not see copyright as an inherent right to the author, but rather an artificial concession made to them to promote science and art. This interpretation of the Copyright Clause, that copyright is not a natural right, has been upheld by the US Supreme Court on numerous occasions, such as Wheaton v. Peters in 1834, and then again in 1932 when the court states, “the Congress did not sanction an existing right, but created a new one…the sole interest of the United States and the primary object in conferring the copyright monopoly lie in the general benefits derived by the public from the labors of authors” (Fox Film Corp. v. Doyal, 1932, Para. 3). Thus, we must understand that “copyright’s justification relies entirely on whether it provides a necessary and proper means of promoting the general welfare” (Bell, 2009, p. 6). To put it simply, copyright is a public policy tool, not a natural right. The second point is that copyright law is a deal between the US government and the public. Essentially, “the government spends the public’s natural rights, on the public’s behalf, as part of a deal to bring the public more published works” (Stallman, 2004, p. 79). This concept is known as the copyright bargain.

It is also beneficial to be aware of the dynamic tension that exists between strong legal rights giving incentives to create more new works, and strong legal restrictions (against the public/individual user) interfering with the dissemination of those works for the public good (Garlick, 2008, p. 428). This dynamic tension relates directly to a debate that has been going since the notion of copyright first entered the European vocabulary (Hesse, 2002).

When the Statute of Queen Anne passed in 1710 in Great Britain, the English government had made its first step towards protecting creative works by granting legal limited monopolies to authors (Timmers, 2005). This was necessary due to the invention of the printing press, followed by the industrial revolution, a rise in literacy among middle class Europe, and increasing competition among printers and publishers (Hesse, 2002). Ironically enough, in these days the term “pirate” was used by authors to describe publishers who would publish unauthorized works. Thus began a long debate that still carries on today on the notion of authorship and how it should relate to copyright law.

Eleven years before the US Constitution was adopted, in 1776 in France, a philosopher and mathematician known as Condorcet was a leading thinker behind the “utilitarian” view on intellectual property. He claimed that the property of literary ideas “is not a property derived from the natural order and defended by social force; it is a property founded in society itself. It is not a true right; it is a privilege” (as cited by Hesse, 2002, p. 35). Those who followed Condorcet’s view of copyright believed that there was “no natural property in ideas,” and that the only justification for these laws would be that they are the best possible way to encourage new works to be created, strictly to benefit the public good. This utilitarian concept of encouraging new works to be created for the public benefit would be the premise of the Copyright Clause included within the US Constitution a decade later. On the other side of the debate were thinkers like Diderot and Fichte, who argued that ideas were subjective, and therefore authors had a “universal natural right” to “perpetual property in ideas” (Hesse, 2002, p. 36). Diderot claimed, “literary creation is the substance of the soul and mind, making it the most valuable and genuine type of possession” (Guindon, 2006, p. 156-157). This natural rights view can still be seen clearly today by the RIAA and figures in other media industries, like Jack Valenti of the MPAA who says that “copyright should last forever less one day” (Pollock, 2007).

So we can see that before copyright law had even made its way to the United States, there was already an intense debate between the notion of copyright as an individual right to the author, and the notion of copyright as a privilege to the author which has a specific purpose of promoting the public good. “The utilitarian position thus understood the public interest as the highest aim of the law, while natural-rights proponents argued that the sanctity of the individual creator should be the guiding principle of any legislator” (Hesse, 2002, p. 36). This conflict in viewpoints would continue throughout the history of copyright law in Europe, the Unites States, and the rest of the world.

The natural rights viewpoint becomes more and more prominent in legislation within countries that have a strong economy of ideas to export, especially Europe and later the United States (Hesse, 2002). The United States in particular moved further and further away from the utilitarian view and further towards the natural rights view “as it evolved from being a net importer of intellectual property to a net exporter” (Hesse, 2002, p. 40). Has the adoption of this notion of copyright, as a universal right to the author, served in benefit to the public, or rather to the benefit of media corporations that hold the publishing rights to increasingly large numbers of exploitable copyrighted works? When answering this question it is important to consider the concept of the copyright bargain, which places the public interest first. Stallman (2004) states that “benefit for the reading public is an end in itself; benefits for publishers are just a means toward that end. The first step in misinterpreting copyright is the elevation of the publishers to the same level of importance as the readers” (p. 80). Misinterpretation of copyright law is even more common due to terms like “intellectual property” and copyright “protections,” which have altered the public perception of the true purpose of US copyright laws.

Guindon (2006) states,
Although it is now common to talk about intellectual property of a book, a movie, or a piece of music, this is not always the best way to understand the purpose of copyright. The original copyright laws…were all about making the best possible compromise between favoring creation and securing easy access to knowledge and art. (p. 160)

Copyright law in the United States was first enacted in the US with the Copyright Act of 1790, which granted rights to authors of books, maps, and charts. The copyright term was 14 years with the option of a 14-year renewal. As new technologies were introduced, copyright law was increasingly extended in both what formats it covered and its duration. The initial 14-year term was doubled in 1831, and protections were extended to include musical compositions. The 14-year extension was doubled with the Copyright Act of 1909, bringing the total possible term to 56 years (U.S. Copyright Office, 2010). As we will see when analyzing the history of recorded music, this copyright extension coincided with a huge boom in the newly developed recorded music industry of player pianos, phonographs, and gramaphones. However, “even though copyright was extended to a growing number of media formats, its protection of content still did not directly affect the public, as self-production was financially still far out of their reach” (Timmers, 2005, p. 28). This is the crucial difference between copyright law in a system of scarcity and physical distribution, and copyright law in a system of infinite space like the Internet, where distribution becomes limitless.

The copyright term was left unchanged for 67 years, until the Copyright Act of 1976 was developed and eventually passed through in 1978. Cited as a necessary fix due to new technologies like tape-based sound recording and major motion pictures, this Act extended the copyright term to either 75 years, or the life of author plus an additional 50 years, while also extending copyright law to all works, including unpublished works (U.S. Copyright Office, 2010). Also extremely important was that sound recordings were now protected under copyright, a change that was influenced by the ability of the public to make copies of vinyl records onto magnetic tape. Copyright law was now beginning to lean further away from protecting the public interest and further towards corporate interests, in the name of author’s rights (Stallman, 2004). This trend extends much further with new copyright legislation passed in the late 1990′s after the widespread adoption of the Web and digital music technologies. The major labels and the RIAA have used these new technologies to justify increasingly extended copyright terms and the criminalization of those who use the technologies to their fullest capabilities. “It is ironic to think that the call for stronger moral rights is based upon the revolutionary emergence of new digital technologies and networks” (Gunidon, 2006, p. 173). These technologies are indeed revolutionary, so much so that past technological shifts in the recorded music industry might not lend much help in predicting the future of digital music. As Chon (1996) points out, the basic principles of copyright, the work principle and the author principle, are increasingly deprecated in the digital world.

I will now trace the history of the recorded music industry and different music formats before analyzing the industry responses to the Web and digital file sharing technologies.

Continue to next section (Recorded Music Pre-Web) >>

By Adam Porter, 2010.

My name is Adam Porter. I am a recent graduate from the Masters program in Professional Media & Media Management at SIU-C. My media interests include audio production, recording engineering, MIDI programming, collage, sound art, multimedia editing, web design, and new media studies.

This is my final research thesis on music copyright, new technologies, and how creative commons and netlabels are facilitating a free music culture.

Download the full PDF of the paper here:  LINK

(The pdf link above is now up! Feel free to download, read, critique, share, enjoy)

Or read on, as the web version of the paper is divided into sections …

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Introduction & Method

With the emergence of the Web as a viable communications platform, and the introduction of sophisticated computer technologies available to the general public, producers and users gained significant new tools for accessing and sharing music in new ways. Paul Miller (2008) says that we can look at the Web as “an immense repository of information accessible to a wide range of new applications – its an archive of almost anything that has been recorded” (p. 15). With this immense archive comes new possibilities, such as the ability to find obscure recordings that aren’t available as physical copies in record stores anymore, or to upload your own music and have it available freely for a global audience to share and enjoy. However, the Internet also provides the ability for copyrighted music that is controlled by the four major record labels to be uploaded, downloaded, and shared through peer-to-peer (p2p) file-sharing networks. Through litigation against Internet users, along with heavy lobbying in Washington, the major labels and their representative trade group and legal arm known as the Recording Industry Association of America (RIAA) have used copyright law to justify the criminalization of music sharing (Stallman, 2004).

A history of technological innovations in music production, distribution, and consumption coincides directly with a history of extended copyright restrictions. The question that remains is whether these copyright laws are in the best interest of authors and most importantly the public, or rather in the best interest of large media corporations. I will be exploring those histories, laying out a framework for understanding music sharing in the age of networked computing and digital music technologies. It is important to remember that the recorded music industry has only existed for approximately 110 years (Morton, 2006), and as new ways of accessing music become available to users, traditional distribution models have the potential of becoming obsolete and incompatible with music user preferences. While this research is more about looking at music sharing on the Web as a new alternative form of promotion and distribution for independent artists, there is a need to outline the history of copyright law and recorded music to create a framework for understanding these new models that embrace free culture principles.

The access portals for recorded music content have increased a thousand fold, and music consumers are now overwhelmed with options of how, where, and what they listen to. Jim Griffin claims that “sound recording’s economy is now a tip jar. It’s a choice listeners make. Not morally, not legally, but effectively it’s become voluntary to pay for music” (Bernstein, 2008, Para. 3). This has empowered the music listening public, allowing for the opportunity of meaningful interactions on a more personal level, while in some situations even completely eliminating the middlemen that previously existed between artists and fans in music commerce. Those middlemen are the record companies who, as Fleischer (2008) states, “keep dreaming about building a digital simulation of a 20th-century copyright economy, based on scarcity and with distinct limits between broadcasting and unit sales.” He goes on to say that “this vision of copyright utopia is triggering an escalation of technology regulations running out of control and ruining civil liberties” (para. 34). This copyright economy based on scarcity is in direct conflict with the digital economy of music on the Internet.

Before computers, the methods of music distribution kept the control of distribution in the hands of the record companies. The equipment used to make copies of recorded music and sell them in mass amounts around the world was not available to the common public. Thus, the means of copying music was controlled by companies, namely the record labels, that invested large amounts of money in the recording and reproduction technologies needed to facilitate copying. In this situation, the copyright laws applying to music and music copying made sense, as the laws did not restrict the abilities of the user, or reader.

Stallman (2009) states,
Copyright on these musical recordings was mostly uncontroversial as it only restricted record companies and not music listeners. Today’s digital technology enables everyone to make and share copies. Record companies now seek to use copyright law to deny us the use of this technical advance. The law which was acceptable when it restricted only publishers is now an injustice because it forbids cooperation among citizens. (Para. 4)

Stallman’s quote points directly to the purpose of my research, to analyze how the Web, digital music distribution, affordable music production software, and new music consumer preferences are in direct conflict with US copyright laws that restrict music users and criminalize sharing, thus leading to a need for alternative models that facilitate sharing. That analysis will lay the framework for a more narrowed research focus on free music culture, a movement consisting of independent artists and musicians, netlabels, music sharing communities, remix portals, and music fans of all types. By embracing digital technologies, and using the Web as a platform to distribute music that can be shared freely throughout the world, these musicians and fans provide a great example of how the Internet can be used to enrich our music culture and promote new talent.

Distribution costs near zero, so costs for the consumer can near zero as well. This is okay, as long as models are allowed to thrive that enable artists to use their recorded works as incentive for other purchases, like special limited edition physical releases, merchandise, and most importantly concert tickets. Rio Caraeff, the head of digital strategy at eLabs (a subsidiary of Universal Music Group) stated at the Digital Music Summit in Nashville that “the future is not the sale of recorded music.” He goes on to say that now “context is king…everything around the music has value. Access to music will be more powerful and valued than possession…and music will become more valuable to consumers than it is today” (Caraeff, 2009, presentation). This might seem like a surprising statement from a a major label employee, but it serves as proof that the record companies are well aware of the shift in music consumption habits. To keep the major record companies scarcity-based business model working will require “bureaucratic hierarchies with gatekeepers at every level. Therefore, new artists’ access to channels for financing, music production, distribution, and marketing is highly restricted” (Burkart, 2010, p. 22). As digital technologies allow anyone access to all of these channels, new business models form in opposition to the major labels, eliminating the gatekeepers that exist between musicians and fans. There becomes less of an absolute need to sign with a record label once the means of production, promotion, and distribution are available to the musicians themselves. I am interested in those embracing this new empowerment.

To understand these issues in the proper context, I will begin by looking at the history of copyright law, and how that relates to the history of recorded music before the widespread adoption of the World Wide Web. I will then focus on new technologies like mp3s and p2p file sharing, and how they have changed the context of music, which will lead to a post-Web analysis of the recorded music industry. I will then look at the major label and RIAA responses to the digital shift, including the passing of the DMCA and the increased litigation against Internet users in the 21st century. I am primarily using scholarly journals, books, and online sources as my reference points. The major labels provide a context and comparison for what will be presented and analyzed in the second half of this research, a new cultural economy of music that exists in contrast to the major label models of commercial distribution.

My research will shift into a macro case study of netlabels and free music culture, which will serve as an example of Web communities that are embracing a shared music philosophy. Free music refers to non-restrictive licensing, meaning the music can be shared and re-distributed for non-commercial purposes legally. Netlabels are a driving force behind free music culture, filtering and aggregating free music which is then distributed on the Internet, bypassing traditional physical distribution practices and releasing music in a digital format, usually for free and under a CC license. However, this definition is by no means set in stone, as most netlabels have many similar characteristics but have different goals and operate in different ways. A lot of netlabel music is distributed free of cost, yet some use a hybrid model of some free and some paid downloads. However, I will argue that the freedom to share is the most important aspect of this new network of cultural content, while a free price is not necessarily a defining element, just a common one. I will explain the concepts behind free culture, free software, and free music. This will include examples of new licensing models that are built around traditional copyright law, such as free software licenses and Creative Commons. These licenses are allowing programmers, authors, musicians, and media makers to choose exactly what rights they want associated with their work, while ensuring that the work can at least be shared freely for non-commercial purposes.

I will be utilizing an analysis of literature discussing netlabels and related topics, as well as personal interviews that I have conducted with netlabel owners across the globe. Due to the lack of academic research on netlabels, the primary data gathered from interviews is helpful in portraying netlabels as seen through the eyes of those who run them. I will conclude with a discussion of other CC-licensed music and remix communities on the Web, and what social and cultural implications these communities have for the future of music production, distribution, and consumption. This analysis is important because netlabels and Creative Commons music communities are highly under-researched in academia, and thus a detailed explanation of this history and culture is lacking and needed in critical media studies. At the end of the paper I will make some declarations for the future of digital music on the Web, specifically focusing on new licensing and distribution models, netlabels, and free music culture.

Continue to next section (Copyright) >>

By Adam Porter, 2010.