Digital Art/Digital Media - Theory and Practice
RTF 344M, FA360, FA 381
Dr. Bruce Pennycook; Marianela Vega (TA)

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Class Notes #3

Digital Rights

A Brief Introduction

Many of you (perhaps all?) have downloaded music files from the internet. Some of you may have payed for these tracks through one of the various services such as Apple's "itunes" site. Some of you may also have downloaded feature movies or even software products such as Photoshop through Kazaa, Limewire or other "anonymous peer-to-peer" services. I doubt that any of you have "purchased" a feature length movie to be downloaded over the internet as these services are just coming on line. However, you may have purchased short films, images and software through commercial sites.

The issue we wish to address here is not so much as to whether or not such downloads are legal as it is certainly clear that making and distributing "copies" (digital or otherwise) of commercial property cannot be legal within the current framework of copyright legislation. But what does the word "copyright" mean? How is it applied if say, your band makes a commercial CD and sells it on-line or in the stores? Or if you write a book of poetry or make a set of digital photographs or even a movie.

Let's look at Wikipedia's definition of Copyright. (Note that Wikipedia is a very good source for this kind of formal info). As you can see, this question is very very compelling and equally perplexing as it raises the central notion of intellectual property which can then be extended to the realms of patents and trademarks as well as copyright. Let me try to put into some practical perspective.

If I write a song and make a piano-voice score of that song then publish it with a music publishing house such as Boosey & Hawkes, the right to make copies of that score is restricted to the publisher. Meaning, you could not legally buy one copy then make new copies (either by hand or printing press or computer) and sell them. In the United States (but not everywhere) the law does allow you to make a "copy for personal use" (with certain restrictions) but by no means can you sell even one copy to anyone. This idea applies equally to tapes, CD's, DVD's, photographs, newspapers, and on and on.

Extend this notion to practically any form of art or media that could be copied by any means and you have the basic notion of copyright. Someone, intially only the creator, holds exclusive rights to the making, distributing, selling and recieving compensation for their creative effort. It is the "thing that is made" and not the ideas or the facts that you may have lead to the creative product that can be subject to copyright protection.

But copyright does not extend forever. There are many books, poems, songs, etc. that are now in the "public domain". That is, they are no longer protected by law in any country. But this too can be tricky. For example, Beethoven's Fifth Symphony (ta-ta-ta-daaa) is no longer protected. BUT, you cannot take a version of the musical score of this most famous of all works (published by Dover Editions for example), make a set of photocopies and sell it. Why? Because the "printed publication" - including all the notes, editorial corrections, page layout, etc. etc. IS under coyright. So, in order to legally "publish" Beethoven's Fifth, you would have to go find a very old score or even the original score (safe and sound in a library for sure) and make your own edition. That would be a legal use of a "public domain" work of art.

Who gets the money?

This is where things get nasty. I have heard many "downloaders" say to me something like - "what difference does it make - those fatcats at SONY are making zillions" or the other argument "CD's are way too expensive and I only like one track - the rest are crap".

Let's deal with the first one.

There are many fees associated with the sales revenues of a CD and everyone needs to get paid - the record company, the marketing company, the publishing company, the recording studio engineer, the editor that made sure the text was correct, the graphic designer for the cover, the players who were hired to add strings or brass, the extra singers, the guy who brought the food and cokes at 3am to the studio ..... and on it goes. Finally, the person or group who actually wrote the song and hold the "copyright" on the material (lyrics and music) deserve to get something extra. After all - he/she/they created it in the first place!

Here is a true story. My first record contract was with RCA Victor in Toronto Canada. I was 18 years old and new little or nothing about any of this. I did not write any of the songs on our first (and only) L.P. record and learned that the song writer(s) in the band would get a "publishing contract" that would pay them some small fraction (like 10 cents per track) for each record sold. The rest of the band like myself were technically playing as "work of hire" musicians and got paid for the recording sessions. We had no rights. Meaning no matter how many records RCA sold, we wouldn't get another dime. But, RCA weren't all bad. They gave the band a ton of studio gear and paid the rent on our farm where we were supposed to practice all summer (and not lounge around the trout pond enjoying herbal pleasures).

So... we did not sell many records and eventually the contract was terminated. For sure, RCA lost money on us. They had paid for everything and there is no way they got all their money back from sales. But let's imagine that we sold a 100,000 albums at $20 each. That's $2,000,000 in total revenues.

First, the record store takes half as they buy the records from RCA for $10.00 leaving 1 mil for the record company. RCA had spent about $50,000 I would guess not counting the salaries for the suits that worked there. From the 1 mil collected they would pay about $1.00 per record ($200,000) in "royalties" to the song writer(s). Whatever would have been left over (assuming the band didn't have a profit-sharing agreement) would be "corporate profit". In the case of a mega-star like Celine Dionne or Sting - there would indeed be a profit sharing so that the "star" would get a big slice of the total profits.

At the same time, for every time a song was played on the radio the performing rights organizations like BMI would pay the songwriters a fee to the songwriters. These are called "performance and/or mechanical royalties". Some of my friends have never sold a record but made a great deal of money from these kinds of payments. Imagine for a moment how many times a year a song written by Lennon & McCartney gets played on the air worldwide. The song Yesterday has been recorded by just about every singer on earth in many languages and as you can see in Wikipedia,

"has the most cover versions of any song ever written, while BMI asserts that it was performed over seven million times in the 20th century alone."

Let's see. At $1.00 per play that's $7,000,000 for one song! So yes, there are a few song writers who make very large amounts of money. But realistically, most make very little. If you download a track by a big star, they won't feel the pinch. BUT, all the low end of the production team (technicians, caterers, extra players) will eventually end up unemployed. If you download songs by an Indie band that probably paid for everything themselves from their day jobs - everyone in the band gets screwed!

What about tracks vs entire CD's?

This is fairly simple. The record companies have accepted the fact that many listeners want one track from this CD, another from that CD, etc. On-line music stores like iTunes allow you to search, preview and buy individual tracks for less than a buck. How does this work for classical music or jazz where tracks are sometimes 10-20 minutes in length? Noone really knows for sure as the market forces are microscopic compared to the downloads of Avril Lavigne or P. Diddy.

The net result is that the entire "recorded music sales" world is changing too rapidly to really see how this will play out. But we can say with certainty that audio (CD's), video (movies) and other digital art/media forms will be marketed more and more through highly customized and personalized commercial web sites.

Where is this heading?

The overall topic here is called DRM - digital rights management . These are technologies and business practices that try to manage all of the "who gets paid for what" by marking, tracking and logging internet song (or other media property) traffic then collecting, partitioning and dispersing the funds associated with that property. Microsoft (of course) has developed a powerful DRM system for Windows Media that can very accurately manage rights a wide variety of media types, especially audio and video.

But we are only at the very beginning of a truly comprehensive and global rights management scheme. There are many opinions on this matter and I suggest that you read what the Electronic Frontier Foundation (EFF) have to say about filesharing. This organization tries to protect the user (you and me) from excessive corporate or government intrusion on the internet. They do not necessarily represent all points of view.

The Kazaa trial in Australia (handout)

What is the essential argument for Kazaa?

Simply put - they claim that their peer-to-peer structure (meaning, no central server that receives, stores, forwards data legal or otherwise) does not explicitly lead to illegal file sharing and that what people do with the Kazaa system is not the company's responsibility. In short, " it's the user's fault - they are wicked and we are squeeky clean". Moreover, it cannot be proven that our intent was to contribute to the infringment of copyright laws which are clearly stated on the Kazaa home page.

What is the essential argument against Kazaa?

Lawyers for the record companies claimed that Kazaa clearly encourages file-sharing of media, especially music, through branding and other annoucements on the web site. They claim that there was never any doubt in the user community's perception that the essential purpose of Kazaa and any other "p2p" system was to "share" any and every software product (includes music, video, programs, images, etc...) that could be found.

How does it relate to this course?

It is impossible to consider all of the ramifications of property and intellectual rights in the context of a survey of digital art/media. However, there are some very clear issues that we are facing as creators and users of digital media such as:

 

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