The Management of Copyright and Related Rights

Transcription

1 The Management of Copyright and Related Rights Consultation response from Professor Ross Anderson, Cambridge University, and Foundation for Information Policy Research 1. This note is in response to European Commission consultation document COM(2004) 261 (final) on the management of copyright and related rights in the internal market. 2. I welcome the Commission s initiative, and wish to bring to its attention a number of issues that arise from the viewpoint of folk music. The Commission will have heard representations from the music industry, whose business model involves a small number of star performers and a large number of passive consumers. Folk music is very different. Many listeners also play, and innovation (whose promotion is the reason for copyright to exist) is often incremental. Performances often take place in pubs, church halls, and outdoor festivals rather than in large, well-regulated venues. 3. Nonetheless, folk music plays an important role in creativity, cultural diversity and cultural identity, especially in the cultures of small nations and minority communities. It is clearly within the Commissions remit here. 4. Folk music is also growing. As the sales of CDs by conventional music companies slump, folk music is undergoing a revival everywhere in Europe. As social and economic progress create more leisure, more and more people wish to participate in music rather than being mere passive recipients. Even from the viewpoint of the major record companies, folk music has positive effects: it sustains and enhances the pool of musical talent from which future generations of star performers will arise. The majors have not sought to demonise the folk revival in the way that, for example, they complain about the Internet. 5. Despite the importance of folk music to the life of the Community, there appears to be no body representing our interests in Brussels. There are many associations devoted to the furtherance of particular instruments or musical traditions, but not one of these appears to be seized yet of the problems that could be caused by an illinformed harmonisation of the rules for collecting societies. 6. My own interest in this is straightforward: I play the pipes (the Great Highland Bagpipe and the Scottish smallpipes). I played competitively as a teenager, and thereafter paid my way through university by working as a street musician in Germany, France, the Netherlands and Denmark. Nowadays piping is simply a hobby, and complements an interest in the history of music in Scotland. 7. I have consulted a number of people in the folk music world prior to writing this document. The views expressed here are my own, but I believe they broadly represent what the community s view would be, were there mechanisms to arrive at a

2 consensus view. Although I illustrate my points principally with respect to Scots piping, my remarks apply also to Northumbrian, Irish, Breton, Flemish and Galician piping, to Shetland fiddlers, to French luthiers, to German players of the Drehleier and the many other folk traditions in the EU. They also apply more generally to many people who play music for pleasure rather than being commercial performers or passive consumers. 8. Thirty years ago, folk music fell largely outside the scope of copyright enforcement. If a musician published a book of tunes, or cut a record, standard commercial rules were applied by the publisher. However, live performances were unregulated. In theory, if I as a street musician played someone else s tune, they could have sued me for a royalty, but this was just not done. Indeed my teacher, Donald MacLeod, was also a prolific composer and was aware that I spent my summer vacation on missionary duty on the Continent, as he put it. Not only did he not ask for royalties he was fully supportive and even posted me new reeds on occasion when I needed them. During his lifetime he published seven books of tunes, not in order to get rich from collecting-society royalties, but so that people would play his music. 9. In my final year at school, I was Pipe-Major of the school pipe band. At that time there was no enforcement activity against schools by collecting societies. We gave performances without buying a license from the Performing Rights Society (PRS), and we happily copied sheet music. 10. The relaxed approach to commercial arrangements extends to many copyright owners. Much music is published by non-profit societies, such as The Piobaireachd Society in the case of highland pipe music. (Similar organisations exist for other musical traditions.) Such societies typically have no employees and only seek to make enough money out of each book to pay for the publication of the next one. 11. In short, folk music is primarily a community-based activity rather than a commercial activity. It is driven by love of music, shared cultural interests, the pleasure of participation, the social aspects, and (at the top end) by competition for prizes and honours. It lies at the other end of the spectrum from commercial pop music, whose vendors have been doing much of the lobbying for recent changes in community law. 12. Now, however, the incessant tightening of copyright law is starting to have unpleasant effects on folk music, which are starting to cause serious disquiet. 13. In the UK, the Copyright Licensing Agency (CLA) is threatening to sue schools that copy sheet music for school orchestras or bands ( Publishers want school copyright cheats to face the music, Jon Robins, The Times, Law Section, 20 April 2004, p5). They were empowered to do this by the Copyright and Related Rights Regulations that implemented EUCD. Previously, copying music for study and practice purposes fell under fair dealing exemptions. The CLA is extremely pleased with the new regulations; it says its business has doubled.

3 14. This may be not the EU s fault, as it arose from a lazy implementation in Britain of the EUCD, against which FIPR lobbied vigorously (Britain used the European Communities Act to amend existing copyright law rather than passing new primary legislation, and this had the effect of limiting the changes to the minimum necessary see However, its potential effects on piping in schools in Scotland are dire. 15. A typical school band will work up two sets of tunes for competition and display a march, strathspey and reel, of three tunes, and a medley, which might contain six to eight. About half the tunes might be traditional, and thus open to copying without penalty. The rest might come from five different books. (Pipe music is published in book form, rather than the sheet music common with orchestral pieces.) So a school band with six pipers might have to buy six copies each of five books at 25 each. That is enough to buy another set of pipes! So, in practice, school bands will limit themselves to traditional tunes, or get all their copyright tunes from one large book (in practice that would probably mean the Scots Guards book). 16. The effect is that school bands will be much less likely to play any recently composed music. This is totally perverse given the preamble to the EU Copyright Directive: (14) This Directive should seek to promote learning and culture by protecting works and other subject-matter while permitting exceptions or limitations in the public interest for the purpose of education and teaching. 17. The reaction of music composers is as one might expect. Neil Dickie, one of the prominent composers of my own generation (and a former piper in my school band) has written that provided a band or school owns one copy of his book, that s enough; they are welcome to photocopy tunes for practice. Other composers take an even more liberal view. Some place their music completely in the public domain; others (like Matt Seattle) put their compositions on their websites as well as in published books, so that sheet music becomes free for non-commercial performances, but retain the right to collect royalties from commercial performances through the PRS and from commercial recordings through the MCPS. 18. Now consider what might happen with the harmonisation of collecting societies in Europe. If the Commission, the Parliament and the Council agree to follow past practice of harmonising all copyright-related matters upwards, then we may expect European collecting societies to follow the German model. I understand that there, a copyright owner must pass all rights to the collecting society. A composer who grants a licence for the limited, not-for-profit reproduction of sheet music (as Neil Dickie has done) cannot participate in their system. 19. Thus the effect of imposing German practice throughout Europe would be to deprive some folk music composers of royalty streams to which they are entitled and which they currently receive. That is clearly unjust and likely to be open to legal challenge.

4 (In fact, even at present the German practice probably contravenes article 82; it deprives some composers of income from pipe bands playing in Germany.) 20. Such an outcome would face composers with a binary choice: either become fully commercial (and quite probably have no-one else play your tunes until 70 years after your death) or place your music fully in the public domain (and get no license fees at all). Such a choice would create outrage, and if nonetheless enforced might have long-term consequences very far from what many stakeholders want. Folk music might be changed into something so similar to commercial music that it was no longer folk ; on the other hand, such a rule might spur the emergence of publicdomain music on a scale that would damage the major record companies. 21. I therefore welcome the Commission s observation (3.5.3) that users should be able to manage some of their rights individually. The exact definition of rights here is slightly tricky, and I will return to it below (sections 26-29). 22. However, I urge the Commission not merely to take a narrow legalistic view of what can and cannot be written into a harmonisation directive. It should start from the high objective of promoting learning and culture, and work downward from that. The mandatory licensing provisions of national laws were enacted for just this purpose, to prevent composers such as Paganini from using copyright law to assert a monopoly over the performance of their compositions. 23. It would be perverse if these provisions, and the societies that live from them, were to now evolve in such a way as to have a chilling effect on learning and culture. 24. Blackstone famously described the evolution of the law as a long march from status to contract. Arrangements based on cultural norms, social expectations, industry practices and tacit understanding are over time codified in statute, regulation or contract. Folk music probably now stands at the point where existing informal practices in respect of composition and copyright become formalised. The European Commission could assist in this transformative process; if not, it should at least seek to do no harm. 25. So what is required? A useful analogy may come from software, which is sometimes created completely by a commercial vendor, but is sometimes the result of incremental contributions by many individuals. In the latter case, there are many licensing arrangements available, such as the GPL, BSD and the Apache licenses. 26. This experience has helped inspire the launch of the Creative Commons, which offers licenses for musicians (and others) that support cooperative work. Creative Commons licenses enable musicians to grant some rights to the public while retaining others. For example, a composer can release music that anyone may perform for noncommercial purposes. He may also release a composition with permission for anyone to create derivative works.

5 27. There is a real demand for this diversity. For example, in the Northumbrian piping tradition, it is normal for players to compose their own variations on tunes. Among Scots pipers, Neil Dickie takes the view that his tunes should be played exactly as he wrote them. Yet again, the rise of appropriation artists who rip and remix others work is such an exciting development that no less a composer than David Bowie has given permission to people to create derivative works from his songs. Given this diversity of preferences among composers, to maximise cultural innovation we must support a diversity of licensing regimes. 28. The Creative Commons project is still very much a work in progress. It does not, for example, have a license that expresses the traditional preference of composers of music for the Scots bagpipe that non-profit performance is allowable, that largescale commercial exploiters should pay, but that small-scale commercial performance is also allowable. In particular, I would not expect street musicians to pay me any royalty for using one of my tunes, nor would I expect anything from a band playing in a pub. 29. At the Creative Commons launch in Berlin last weekend, I raised just this point, and suggested the creation of a new licence for the purpose. This licence would permit small-scale commercial use, and also use on websites. I hope this licence will be available in due course once the lawyers have settled on a definition of small-scale that will travel across different legal jurisdictions. 30. The Commission should therefore note that this area of law is still in its early stages of development and should not legislate to harmonise collecting societies in such a way as to cramp or stifle that development. It should not see harmonisation as an opportunity to get everyone up to German standards. Rather, it should be an opportunity to get Germany up to the more liberal and open standards elsewhere. 31. There is another aspect of collecting-society law and practice that merits consideration, namely enforcement. While I was busking with my bagpipes in Munich 30 years ago, it may have been possible in theory for Donald MacLeod (and the other living composers of tunes I played) to sue me for a few pfennigs in royalties. In practice I was safe, as that was simply not how people in the piping community behave. But now collecting societies are taking over enforcement functions, a practice that will be accelerated by the EU IPR Enforcement Directive, and social norms may no longer be relied on. 32. This is already having a noticeable chilling effect on folk music. A few months ago I went to a folk festival in Tyneside, and the night before I called in at a folk club in a pub near Ryton. I found that the club was being held in a side-room with a prominent sign private function. This is to prevent trouble from the Performing Rights Society. A musical gathering that, a few years ago, would have been held in the main room of the pub, is now relegated to a ghetto.

6 33. The Performing Rights Society is also having a chilling effect on school music. While thirty years ago pupils simply played music, nowadays the PRS demands a license fee from schools. A flat-rate license is available for up to six performances a year; beyond that, schools have to submit full lists of all items performed for detailed accounting. This is a factor in some schools giving up school music altogether, while in others there can be a crowding effect whereby the six slots are allocated to the school orchestra and the jazz club, thus making it difficult for anyone to set up a pipe band (or a string quartet). 34. There are a number of further injustices in the UK system. For example, the flat-rate license fee income is distributed pro-rata to the owners of valuable music copyrights. The effect of this is that a school pipe band playing Donald MacLeod s compositions is not thereby boosting the pension of his widow Winnie MacLeod but rather contributing to Sir Paul MacCartney s already well-padded bank account. It thus functions as a regressive tax, and discriminates against minority interests. 35. I therefore strongly endorse the Commission s view (3.5.2) that users must be able to contest the collecting societies tariffs. 36. The fundamental problem is governance. Governments have granted monopolies to collecting societies in order to meet social goals boosting creativity to socially optimal levels, as an IP economist would put it and these goals require schools to be treated differently from large rock bands. However, the actual treatment of schools (and indeed of folk music) appears to be entirely at the discretion of the collecting societies, who seem to act as simple income-maximizers. There is no way to negotiate! (For the record, I tried to contact the PRS while preparing this submission; the phone number on their website is that of a commercial company to whom they have subcontracted license fee collection, and although I requested that the PRS call me back they did not do so.) 37. The Commission should therefore consider ways of ensuring that collecting societies have due regard to the economic purpose and social function of copyright law, as expressed in the preamble to the EUCD. For example, who should decide on license terms for schools, and how? If musicians of a particular genre want their flat-rate fees put in a separate pool so that Winnie Macleod gets her fair share of fees paid on behalf of pipe bands then how might we get the PRS to even consider this request? And what about pub music where the PRS wants to tax all music in pubs, while I want bands in pubs to play my music, and don t care about royalties? 38. There is a final issue I wish to raise, which is music online. The enormous potential of the world-wide web has not been harnessed by musicians anything like as much as it has been by scientists (my day job is as a computer scientist). The main obstacle is the rules enforced by the collection societies. A typical rule is that I may record a Paul McCartney tune on a CD I cut, provided I pay him 3c per track per CD sold. This was a welcome innovation at the time, as it prevented Paganini-like behaviour. However, the fact that the fee is a flat rate (rather than a percentage) is now a serious

7 problem. It inhibits people from placing performances on their websites. There have been a few private sites that hosted recordings of pipe band competitions, but this has never taken off. The problem is that, as enforcement passes from the composers to the collecting societies, such sites will eventually be declared to be pirate and shut down even though the recordings perform a valuable social service and are posted with the consent of both the performers and the composers. This is an extremely perverse outcome. 39. The way to fix things is for the mechanical copyright royalty to be set not at 3c per track but at (say) 5% of the trade price of the CD. The effect on CD markets would be the same, but the chilling effect on online music would be lifted. 40. The problem is, of course, that while regulation is left to private monopolies such as the collecting societies, there is no obvious way to move them from a 3c rule to a 5% rule. Across the EU, rules seem to be made by national governments in some countries and in others by collecting societies; the whole business is complex and messy, and lacks transparency. This gives rise to single-market issues as well as issues of cultural policy. 41. There are wider implications than for online folk music. It is a longstanding complaint that CD prices are higher in the EU than elsewhere, particularly in the USA. Collecting-society rules may thus be giving rise to competition-policy rules too. 42. I therefore urge the Commission, when contemplating harmonised regulations for collecting societies, to work from first principles to ensure a regime that promotes learning and culture by allowing diverse and developing models of licensing, and that makes transparent and democratically accountable the processes whereby mandatory licensing rights are administered. 43. I also welcome the Commission s recent objection to the Santiago Agreement. Competition between collecting societies is long overdue, and could go a long way towards rectifying some of the worst of the problems discussed above. 44. Although not by nature in favour of multiplying legislation, I tend to be driven reluctantly towards the Commission s view (3.6) that abstaining from any legislative action does not seem to be an option anymore. However, good legislation needs to take into account the interests of all affected parties, and I am concerned that, so far, the debate has been driven by the music majors, the collecting societies, the DRM vendors, and those NGOs and government departments whose remit covers consumer interests. This is not enough. Throughout the European Union there are millions of people who play music for pleasure, or for sub-commercial reward, and millions more who enjoy community music traditions. Folk music in particular plays a key role in creativity and culture throughout Europe, and our interests have been sorely neglected (and even harmed) by recent developments in copyright law.

8 45. I therefore urge the Commission to bear folk music concerns in mind when drafting the proposed Directive. Professor Ross Anderson Cambridge University Computer Laboratory JJ Thomson Avenue Cambridge CB3 0FD England 20 th June 2004