The music industry needs to change the record

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The claim by the music business to maintain control of every subsequent exploitation of its product has no more moral basis than the claim of a think-tank to control every subsequent expression or development of its ideas. Media conglomerates need to work hard to justify their claims to such legal preferences.

Lawrence Lessig’s new (downloadable) book on intellectual property has created a predictable furore. In an angry letter to this paper (24 May) David Munns, vice-chairman of EMI, accuses the Stanford University law professor of condoning theft.

Mr Munns is wrong. English law, following common sense, requires that a thief have an intention of permanently depriving an owner of his property. File sharers have no intention of depriving anyone of his property. Nor do their activities meet the further test that the reasonable man would think them dishonest. Parents who would be appalled if their children stole records from the Virgin Megastore condone their music downloads. The most that can be said is that file sharing deprives record companies of sales they might otherwise have hoped to obtain. The everyday word for that process is not theft, but competition.

The analogy with shoplifting is further strained because the shoplifter has the legal and socially approved alternative of queueing up at the checkout. File sharing took off not just because it was cheap but also because it was the only way to download music. Established companies tried to protect existing channels of distribution. Fortunately, they failed.

The copyright lobby has acquired its power because it has persuaded creative people that it defends their interests. I remember upbraiding a colleague who was using pirated software: I argued that we had a common concern to protect intellectual property. But I was mistaken. The law protects computer programs but not the ideas of a think-tank. That is why software businesses are well endowed and think-tanks are not, except for those that lend support to arguments such as those of Mr Munns.

The claim by the music business to maintain control of every subsequent exploitation of its product has no more moral basis than the claim of a think-tank to control every subsequent expression or development of its ideas. Or the right of Trinity College, Cambridge, to approve every application of calculus, the invention of Isaac Newton, its late employee. Far from stimulating creative effort, such restrictions would paralyse it. The unreasonable nature of the assertion and its unenforceability reinforce each other. This pretty much describes the music industry’s situation. So it will be the first industry to be genuinely transformed by the internet.

The consequences are hard to foresee. The reductions in revenue that follow from the loss of control by publishers will be partly offset by increased demand stimulated by the lower costs of distribution. The very wide differentials between the successful and the less successful in creative industries will be eroded. It is Tom Clancy and Eminem, not writers of academic monographs and would-be rock stars, who stand to lose most from unauthorised copying. The high costs of marketing and distribution through traditional channels have made it hard for minor artists to establish themselves. But an online retailer can easily stock far more titles than even the largest shop. So it is likely that lower distribution costs will mean a smaller royalty pool shared between many more artists.

The law, again following common sense, recognises moral issues in copyright. Newton would have no justification for preventing others using or developing calculus, but he (not Trinity College) does have a right to be recognised for his contribution and to have his own ideas fairly presented. These moral rights – the ones asserted in the title pages of books – are distinct from the economic rights that publishers acquire from authors and artists.

The purpose of these economic rights – and this is the essence of Prof Lessig’s argument – is to strike a balance between the various public interests in promoting innovation, stimulating creativity and achieving the widest possible dissemination of new material. It is on these grounds, not sanctimonious moralising or false analogy, that publishers need to argue their case. After a decade in which media conglomerates have sought to block innovation they did not control and proliferate imitative material at the expense of genuine originality, they need to improve their performance substantially to justify their claims to the legal privileges denied to think-tanks and Isaac Newton.

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