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net.wars Music Tax

According to various press write-ups, Music Education in the 21st Century in the United Kingdom, published yesterday, worries that older forms of music like brass bands, classical, and folk music could become extinct. Despite the fact that you can put any kind of music you want on an iPod, kids just aren't hearing anything but pop, rock, hip-hop, and rap.

This is in the same week that the Performing Rights Society for Music released a paper proposing to levy fees on ISPs in proportion to the amount of copyrighted material being illegally downloaded via their networks.

These are connected issues.

There are so many problems with the "music tax" proposal that you barely know where to start. The paper describes ISPs as "next-generation broadcasters" and unlicensed media consumption as providing value to ISPs; and proposes using Detica's deep packet inspection to analyze traffic and track "plausibly illicit file sharing".

ISPs are infrastructure providers. A few, mostly cable companies, are broadcasters – Virgin in the UK and Comcast in the US – whose core business is providing TV. But most are phone companies, landline or mobile – BT, Verizon, Vodafone, T-Mobile. To ISPs serving the mass market heavy downloaders who soak up their bandwidth are pariahs who don't pay proportionately for their usage. Finally, the belief that it's easy to tell identify illicit data streams is laughable.

And that's without considering the civil liberties implications of having a private company snoop on everyone's downloads at the behest of a single industry sector.

But we've been through what's wrong with this type of proposal before. What may not be obvious is the connection between the decay we began with of older musical forms and the enactment of policies that make the recording industry happy. Brass band music varies considerably in its provenance, but if there's one thing almost all classical music and traditional folk music have in common besides holding an important place in British cultural heritage it's this: they're out of copyright. Policies enacted at the behest of the copyright industries – for example the Digital Economy Act (which BT and TalkTalk want to challenge, by the way) – do nothing for these types of music and their performers.

The 2003 Licensing Act brought in a requirement for pubs and other locations that have long hosted small music events to get entertainment licenses. The upshot: it's easier and cheaper for pubs to have a television or recorded music playing than it is to allow live musicians to sit in a corner and play folk music, even though acoustic music is typically less likely to annoy the neighbors with noise overspill. There have been consultation about changing this and there is currently a bill in the House of Lords, but in the meantime dozens of small folk clubs and acoustic sessions have ended for lack of a welcoming venue. Most of those could have been saved by the exemptions proposed in the bill: audiences of under 200, acoustic music only, ending before midnight, and so on. These issues have been much discussed on the Usenet newsgroup uk.music.folk, and the Live Music Forum delivered a petition with 17,000 signatures to number 10 Downing Street on July 8.

It's particularly ironic that this has happened at a time when the folk scene has had the best influx of energizing young performers for several decades: John Spiers and Jon Boden, Bellowhead, Faustus, Emily and Hazel Askew, and many others (as a general rule, anything involving Tim Van Eyken is good). These are fresh, high-energy reinterpretations of English folk music created by superb, passionate musicians, not at all the dying, airless flatness of academia some might imagine. The fact that most folk performers consider a turnout of 200 a great night doesn't mean they're – it is to laugh! – less competent than Lady Gaga.

But a lot of the point of folk music – like the open-source software movement – is that it's participatory (If you can sing, then you can write a song, sings my friend Bill Steele, writer of "Garbage!", the song made famous by Pete Seeger). Music, like sports, software coding, and scientific exploration, is something that people need to believe they can do themselves – and of all the genres folk is probably the most accessible in that regard. It would certainly suit the recording business for music to become a black box like a mobile phone or a game console, something people pay to use without looking inside it. But society as a whole would be poorer for it. Government and education should be encouraging kids to play, learn, and experiment, to be fellow creators, not consumers.

So, Messrs Cameron and Clegg: if you want to do something for music and musicians, amend the Licensing Act to encourage live performance by live musicians in small venues. Amend contract law so that musicians aren't forced into giving away all rights in perpetuity with no reversion. Require the new owners of failed record labels to pay royalties on the back catalogues they've acquired instead of allowing them to take the assets and dump the liabilities. Music is bigger than just those four big labels, y'know.