Will Lembit have me arrested?

I’ve just updated Prawn Free Lembit with Mr Opik’s latest column from the Daily Sport and it has put me in a bit of a quandary.

You see, by posting that column, I’m breaching copyright. I’m a pretty good boy when it comes to copyright violation generally – unusually for my generation even where music is concerned – but I set up Prawn Free Lembit because I thought these columns ought to see the light of day outside of the confines of a porn-infested and frankly medieval website that doesn’t even have RSS feeds. He’s an elected politician and I think we all have a right to know what he has to say without having degrading images of women shoved in our faces, don’t you think? I don’t editorialise and let Lembit speaks for himself. If it leads to people asking awkward questions about why a man in his forties who owns a pair of trousers would spend a significant part of his working week perving about which “Sport Stunna” he’d like to “elevate” to “high office” (f’narr!), then that’s on him.

However noble my intentions may have been however, it is clear that Lembit has a very black and white view of the matter. Breach of copyright is “theft”, pure and simple. He has lent his support to Peter Mandelson’s plan to cut off people who are caught filesharing illegally and presumably the rozzers will be knocking on my door any minute.

The arguments about why Mandelson’s plans are utterly bogus have been well rehearsed. While I wouldn’t go quite as far as those who favour legalising peer-to-peer filesharing in all circumstances, the government’s disconnection plans would punish the innocent, be impractical in practice and fundamentally miss the point.

The music industry is in the mess that it is in for a very simple reason. It has filched the public and recording artists for decades. This was possible to get away with 20 years ago because technology and IP laws made it easy for them. As a result they could live it large, ply their musicians and useful dupes with drugs and alcohol and indulge their megastars. When the internet came along, instead of waking up to its potential threat to them and adapting, they pretended it didn’t exist for decades. The result was utter contempt by the general public which fuelled the rise of peer-to-peer once the technology came up to speed.

The death of the music industry – which is a real possibility – will not mean the death of music. Music existed before copyright laws and it will exist long after them as well. People won’t suddenly stop making music. What it will probably mean is the death of the superstar. Your online music store will resemble a public library more than HMV. Instead of having a middle man around who decides what music is worth listening to and what category it should be wedged into, we’ll be able to choose from a much wider source. Technology will (has) made garage bands sound as professional as the big labels and marketing costs have levelled out. The Simon Cowells of this world are utterly fucked, which is why his himself has already jumped ship and moved onto TV – and even then the X-Factor band wagon won’t keep rolling forever.

Will it be possible to make money as a musician in the future? It all depends on what your aspirations are. Any halfway successful musician will be able to make several multiples of what I’ll earn in my lifetime, but there’ll be a lot fewer multi-millionaires. You probably won’t ever get that private jet I’m afraid. The simple fact are only so many punters out there and talent is nothing like as hard to come by as Smash Hits and NME led us to believe. They lied.

But is rendering musician to the status of mere vocation such a terrible thing? Money has destroyed so many talents over the years that it is hard to shed a tear for the decline of the superstar. Is it really so wonderful that popular music has become so strongly associated with excess, mental illness, vanity, self-abasement and violence? More musicians earning less money is a scenario in which 99% of us win. It is no coincidence that Wilkinson and Pickett considered a move towards less restrictive IP laws as a crucial step towards engendering a more equal culture in The Spirit Level.

The reason I suspect Lembit does not see it that way is that it is not music he is really defending but the industry which he has courted and been courted by (and indeed courted within) for the past decade.

Oh, and as I have thus far forgotten to post the latest edition of The Show, courtesy of EyeSeeSound.tv, allow me to do so here. It’s the future!


  1. James,

    Though I agree with much of what you say here, and indeed disagree with little (I certainly have little sympathy for record companies, nor the current state of copyright legislation, which I believe favours business for the most part over artists), what form of intellectual property protection would you be in favour of? Presumably you see the need to have some form of enforceable protection, simply because for the artist it is never an easy job producing such material, and artists cannot always be sustained through venues such as performance, or (dare I say it) mainstream popularity?

    I don’t want to claim any kind of expertise here, because I’m studying in a very niche context, but I do think that from my own perspective, I can comment that this does matter. Not everyone can benefit through a system where composers simply earn money through gigs and popular performances — many won’t write that type of music (one problem I come across is the fact that I continuously produce music too difficult for me to perform as a somewhat amateur pianist and violinist), many won’t know a conventional instrument, many will write niche music that doesn’t benefit from that kind of market. But the market is notoriously bad at providing incentives for diverse and long-lasting music *by itself*, as the experience of composers who have struggled in the past indicates. Though this music will likely survive an excessively liberalised market, it strikes me as equitable for composers to have some form of minimal recognition and support for their endeavours, even if they do only cater to a niche market.

    (I mainly think here of “Music existed before copyright laws and it will exist long after them as well” and “People won’t suddenly stop making music” which although obviously true and right in their own way, can be taken too far. This isn’t merely a debate about pragmatism, remember, but also about treating people fairly. And granted, the existing laws are neither pragmatic nor equitable.)


  2. It’s a big subject. Briefly, I would support drasticaly reducing the length of copyright. 20 years has been mooted as a sensible compromise and I would be happy with that, although I have sympathy for the argument it should be even shorter.

    In terms of remuneration, I see the future solution being along the lines of the existing public lending right which recompenses authors whose books are lent out in public libraries. In practice, any attempt to restrict the sharing of electronic media will always end in failure, so why try? I’d prefer a system whereby a small levy (it needn’t go anywhere near the exchequor) is charged to each broadband line. Artists would then be recompensed according to how much their recordings are downloaded, etc.

  3. “Briefly, I would support drasticaly reducing the length of copyright. 20 years has been mooted as a sensible compromise and I would be happy with that, although I have sympathy for the argument it should be even shorter.”

    I think 20 years is fair, if a work is instantly popular. The trouble is that this is not always the case — I could write a work (in my dreams, of course) that could potentially be very popular when I’m old and grey, but take a while to reach this status. I suggest having a minimum of 20 years for intellectual copyright to grant unlimited remuneration, with a larger time limit where a work can only generate a certain amount of money, thus granting artists a generous amount of time to wait for their work to gain recognition, but limiting the extent to which it can be exploited for excessive profit.

    I also suggest limiting the extent to which intellectual property rights can be “sold” (this may already exist, I’m unsure of the law), or having an absolute limit of 20 years for any person benefiting indirectly through IP rights, upon which rights either revert to the original producer or enter public domain.

    I like the public lending right idea, though I wouldn’t like it to be the only means of remuneration for artists. The levy idea is similarly interesting, but I fail to see how it could be arranged in a way that wouldn’t be done through an exchequer — could you elaborate? I certainly think that going after consumers won’t work — holding filesharing site owners to higher standards might potentially be viable, though I don’t really know enough to know.

  4. The fundamental problem with long periods of copyright is that it tends to lead to intellectual property being suppressed. Companies have little incentive to exploit it unless it is likely to make them instant profit and the number of orphan works escalates.

    The 20 years suggestion is based on patent length. Here, Victor Keegan cites two academic reports, one concluding 21 years, the other 14.

    Regarding the hypothetical artist whose creation becomes popular late in life, what they might lose in terms of sales they would potentially gain in terms of being able to perform live and exposure to other works. I’m sure there will be losers, but I’m pretty confident there would be far more winners from such a short period.

    I agree with you about selling on IP rights. A lot of the confusion lies in the selling off of rights.

    I don’t think the exchequor need get involved for the same reason that he isn’t involved with paying out to the PRS or the BBC licence fee – both of which are more complicated to collect than what I’m suggesting. All it requires is an agency and the law to back it up.

  5. “Regarding the hypothetical artist whose creation becomes popular late in life, what they might lose in terms of sales they would potentially gain in terms of being able to perform live and exposure to other works.”

    I’m not sure I agree. There are some composers, for instance, famous for only one work, and popular exposure to one incredibly popular work doesn’t always translate into a wider popularity. Though of course I would not wish for someone to be able to make a living simply because of one work gaining large popularity, I do think that it’s fair to have a safety-check mechanism that allows someone to benefit from a work that only becomes popular later in life.

    In general, I agree with 20 years, I just think there should be a certain amount of flexibility, say with a longer time limit where a work can generate a certain amount of money before it enters public domain.

    I think I understand more of what you mean on the latter point. It would still have to be arranged centrally, however? Given how politicised the licence fee becomes, I’m unsure about how much trust I’d want to put in such a system as the main method of reimbursing artists for online distribution, though I can certainly see its merits.

    Anyway, I’ve outlined a few of my thoughts in more detail up at http://dingdongalistic.wordpress.com .

  6. Incidentally, I’ve just read the article you linked to. If there’s anything that tempts be to become a raving Eurosceptic, its this directive: http://preview.tinyurl.com/yebgxj7 (referenced in the comments section). It’s the type of thing that could only be written by people who had no understanding of intellectual creation — it’s laughable that copyright legislation that provides “protection for the author and the first two generations of his descendants” can be argued to be “fundamental to intellectual creation”.

    Still, it appears that whatever action that should be taken to reform copyright laws cannot be taken unilaterally, and will be much harder to achieve. I had no idea about the Berne convention, I must say — the principles strike me as outdated.

  7. Copyright infringing downloading can’t be theft. Theft is a crime, but copyright infringement is only a civil offence. Redistribution *is* a crime, if it’s done for gain, or if it has a prejudicial impact on the copyright holder.

  8. I’m not quite sure how you managed to extract from my article that I thought that all musicians were rich, especially given that my argument is that restructuring how we pay musicians will benefit 99% of people.

    I’ve written about the death of the ‘superstar’ because that’s what I think the major change we’ll see will be and that it is a fear of this fact that is fuelling the resistance to change. Superstars want to remain superstars and sadly too many musicians consider that to be the benchmark of success. Unless we challenge that mindset we will keep going down the destructive path the music industry is doggedly pursuing.

  9. “I thought that all musicians were rich” – well I didn’t say you said that. I was very careful because I know you’re very sensitive 😉 But looking back I see – D’oh! – I was very careless with my headline. So I have changed it. All the best, Paul

  10. Don’t forget that it’s not profits that incentivize people to create great art, it’s the pursuit of profits; so what if someone only creates something that is appreciated later in their life? What’s important is that they reasonably believe when they are creating it that there’s a good chance that it will earn them fame, money and status.

  11. “so what if someone only creates something that is appreciated later in their life? What’s important is that they reasonably believe when they are creating it that there’s a good chance that it will earn them fame, money and status.”

    You make the mistake that I’m approaching this from a perspective of incentives. I’m not — I’ve already stated that from the perspective of incentives and pragmatism, James is almost certainly right — in fact, it could easily be argued that from the perspective of innovation, it would be better not to have copyright law.

    I’m approaching this from a perspective of what is equitable. Generally, I think that Berne goes so far as to be extremely *in*equitable, in that descendents of an author can have no logical argument to deserve royalties from the works of a long-deceased person. However, it is fair to have a flexible system of copyright law that allows every artist to be certain of gaining a little for their work. What is important is to prevent the system being abused to gain excess profits.

  12. The US constitution explicitly permits copyright and patent rights “for limited Times”, for the explicit purpose of promoting “the Progress of Science and useful Arts”. Hmm, arguably that’s patents and not copyright. The point is that the rights are explicitly incentives.

    I’d like to know if there’s anything as fundamental in UK law.

    On a separate point, I don’t think the profit motive really drives innovation in the arts. It’s more likely generative of a host of wannabes.

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