Features

net.wars: Copywrongs

Most discussions about copyright with respect to music do not include musicians. (This is a shortened version of a talk I gave at Musicians, Fans, and Copyright at the LSE on Wednesday, March 19, 2008.)

Most discussions about copyright with respect to music do not include musicians. The notable exception is the record companies' trophy musicians who appear at government hearings.

Because these tend to be the most famous and well-rewarded musicians they can find, their primarily contribution to the dabate seems to be to try to make politicians think, "We love you, we can't bear that you should starve, the record company must be right."

It's a long time since I made a living playing, so I can't pretend to represent them. But I can make a few observations. Folk musicians in particular stand at the nexus of all the copyright arguments: they are contemporary artists and songwriters, but they mine their material from the public domain.

Every musician, at every level of the business, has been ripped off (PDF), usually when they can least afford it. The result is that they tend to be deeply suspicious of any attempt to limit their rights.

The music business has such a long history of signing the powerless – young, inexperienced musicians, the black blues musicians of the Mississippi Delta, and many others – to exploitive contracts that it's hard to understand why they're still allowed to get away with it. Surely it ought to be possible to limit what rights and terms the industry can dictate to the inexperienced and desperate with stars in their eyes?

Steve Gillette, author with Tom Campbell of the popular 1966 song "Darcy Farrow", says that when Ian & Sylvia wanted to record the song, they were told to hire someone to collect royalties on their behalf.

That person did little to collect royalties for many years. Gillette and Campbell eventually won a court judgement with a standard six-month waiting period – during which time John Denver recorded the song and put it on his best-selling album, Rocky Mountain High, giving the publisher a motive to fight back. They were finally able to wrest back control of the song in about 1990.

In book publishing it is commonplace for the rights to revert to authors if and when the publisher decides to withdraw their work from sale. There is no comparable practice in the music business.

And so, people I know on the folk scene whose work has gone out of commercial release find themselves in the situation where their fans want to buy their music but they can't sell it. As one musician said, "I didn't work all those years to have my music stuck in a vault."

Pete Coe, a traditional performer and songwriter, tells me that the common scenario is that a young musician signs a recording contract early on, and then the company goes out of business and the recordings are bought by others.

The purchasing company buys the assets – the recordings – but not the burden, the obligation to pass on royalties to the original artists. Coe himself, along with many others, is in this situation; some of his early recordings have been through two such bankruptcies. The company that owns them now owns many other folk releases of the period and either refuses to re-release the recordings or refuses to provide sales figures or pay royalties, and is not a member of MCPS.

Coe points out that this company would certainly refuse to cooperate with any effort to claim the reversion of rights.

In a similar case, Nic Jones, a fine and widely admired folk guitarist who played almost exclusively traditional music, was in a terrible car accident in about 1981 that left him unable to play. Over the following years his recordings were bought up but not rereleased, so that an artist now unable to work could not benefit from his back catalogue.

It is only in the last few years, with the cost of making and distributing music falling, that he and his wife have managed to release old live recordings on their own label. Term extension would, if anything, hurt Jones's ability to regain control over and exploit his own work. (Note: I have not canvassed Jones's opinion.)

The artists in these cases, like any group of cats, have reacted in different ways. Gillette, who comments also that in general it's the smaller operators who are the biggest problem, says, that term extension "only benefits the corporate media, and in my experience only serves to lend energy to turning the public trust into company assets".

Coe, on the other hand, favours term extension. "We determined," he said by email in 2006, "that once we'd regained our rights, publishing and recording, that they were never again to pass out of our control."

Coe's reaction is understandable. But I think many problems could be solved by forcing the industry to treat musicians and artists more fairly. It's notable that folk artists, through necessity, pioneered what's becoming commonplace now: releasing their own albums to sell to audiences direct at their gigs and via mail, now Web, order.

What the musicians of the future want and need, in my opinion, is the same thing that the musicians of the present and past wanted: control.

In my view, there is no expansion of copyright that will give it to them.