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On 31 May 2006, 65 armed members of the Swedish police force rounded up their dogs, loaded their semi-automatic weapons, and invaded the physical location of thepiratebay.org – The Pirate Bay is an internet landmark, a bastion of peer to peer users, free copyright advocates and one of the web’s largest repositories of bittorrent links.
This article is not about whether you should download the last Soulja Boy album tonight, nor is it about the validity of peer to peer networking as a viable and effective way of allocating internet bandwidth (which it is, by the way).
This is an article that seeks to explore the underpinning commercial foundation of the music and movie industries: the doctrine of intellectual copyright.
What a strange and wild ride this concept has taken. Why would someone be able to own ideas as if they were property? A melody is not a chair – it cannot truly be bought or sold, and it cannot be put in a shop window. It can be overheard and remembered, and it can also be remixed and remade anew. So why is it given the legal characteristics of a Friesian diary cow, or a packet of soup in a grocery store?
The answer seems simple: copyright exists to protect the artist, the writer or the inventor. They should be rewarded for their ideas, and be afforded some degree of protection in how they decide to use them. It would be hard, and futile to argue against such a proposition. Artisans do deserve compensation for their work – but oddly, the legal system which affords them this right was never created with that goal in mind.
The doctrine of copyright was born in Europe during the Renaissance. Gutenberg’s printing press had opened up a whole new world of information to the middle and lower classes (but not the peasantry. They couldn’t read). With presses you get books, and books make money. As well as making money, they spread information – and the spread of information is a dilution of power (a commodity then held exclusively by the Monarch and the Church).
This was a major headache for the cultural, political and religious elites of the time. In the monarchical hierarchies of 16th Century Europe, following the rules and keeping everyone in line was not just important, it was intrinsic to state power. Thus in 1557 Queen Anne gave the Stationers Guild a monopoly on printing and publishing books; a monopoly which conveniently banned all competition from printers in other counties. Copyright, the literal attribution of the right to copy, had been born.
Not much has changed in five centuries. Copyright laws today are still focussed on increasing the monopolisation of publishers and distributors. Record companies like EMI and Sony retain all the intellectual rights to the work their artists produce, and only compensate their artists for services rendered, as opposed to actual works created. This brings about an uncomfortable situation: the business model currently employed by the labels requires lots of new faces, and little talent. An artist is only as good as their appeal, and the use of copyright to ensnare teen “talent” is a hurdle to these artists developing their own musical reputations. Furthermore, record companies constantly need to keep their sounds “fresh” and this results in a string of formulaic one hit wonders — rather than the promulgation of artists with musical substance.
Oh but the times, they are a’changing. The rise of peer to peer networks, freeware software and the open source movement has seen the emergence of an opposition to the concept of traditional copyright. The Swedish founders of thepiratebay.org were at the cultural epicentre for a rethink of intellectual property. In conjunction with hosting links to torrents of pirated files they created the Piratbyrån – a Swedish lobby group that loosely translates as “The Pirate Bureau”. Other political groups soon emerged, most notably the political “Pirate Party” led by the Swedish IT entrepreneur Richard Falkvinge.
These groups argue a new interpretation of the notion of intellectual copyright. They wish for a new dawn for the legal systems of the western world. Information would have no legal protection, and people would be free to distribute ideas, thoughts, concepts and creations. Supposedly this would result in a more natural evolution of good ideas — and only those with true talent and conviction would stand behind them.
But would this radical change be effaceable? Would a reform of international copyright laws annihilate the arts, as the Record Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) contend? Does downloading music and movies reduce sales, harm artists and alienate potential talent?
Joost Smiers de Volkskrant, of the Culturelink Network, doesn’t think so. His argument is based on the fact that artists, under the control of record companies are locked in an incredibly unfair employment relationship. Only 10 per cent of artists collect 90 per cent of copyright proceeds, and the remaining 90 per cent of artists must share the remaining 10 per cent of proceeds between them. For many artists, copyright would put only a few cents more in their bank accounts. Furthermore, the largest global record companies like Sony and EMI take much of their copyright revenue offshore. GEMA, the German copyright organization, sends approximately 70 per cent of copyright proceeds abroad, mostly to the United States.
If we removed the current system, the commercial oligopolies would be on the back foot. Artists would have no restrictions on what they could work with or manipulate. Information (and therefore innovation) would be free. No longer would we have to suffer the banal factory formulaic pop songs that form the bedrock of the music industry’s revenue. But the complete removal of copyright would ensure that there was no market for creative ideas, beyond live performances. As much as the Pirate Party anarchists like to dream, even the most socialist of us have to operate in a market society.
Joost Smiers de Volkskrant, argues that copyright should operate much like the patent system, just with a much shorter time-span. He claims that a song, album, or movie is only really commercially viable for a year. Anything after that is compromised by the extended publishing and advertising costs. Therefore, it would be sensible for artist’s work to be protected from copying for a year – and then released into the public domain. This would allow for artists to use each other’s ideas (something they have been doing for centuries) as well as turning a buck.
What is certain is that something needs to change. The aggressive actions of the corporate movie and record companies have crossed the line. The RIAA alone has tried swamping the internet community with fearsome lawsuits. It may have backfired. In 2006 the RIAA filed a suit against the Russian site AllOfMp3.com seeking $1.65 trillion dollars in damages. The public reaction to this only strengthened the position of the Pirate Party and the Piratbyrån, as did the police raids against thepiratebay.org in May of that year. The more pirates are cracked down on, the more vocal and vociferous their condemnation of an industry they perceive as not only broken, but ideologically immoral.
Allegations have been thrown backwards and forwards between the two camps. The conglomerates are accusing the pirates of being anarchists, wreckers and haters, thieves (which technically they aren’t – copying denies no one of their physical property) and even drug dealing. I kid you not; a leaked RIAA training video has a representative explaining the need to crack down on piracy “Because it’ll lead them to everything from handguns to large quantities of cocaine [and] marijuana”. Things get even more absurd when the presenter suggests “When you buy a CD, [you are asked] would you like it with or without – the with is enclosing a piece of crack or whatever the case may be.” This outrageous claim would be particularly shocking, if it wasn’t for the fact that no one buys pirated CDs anymore, they just download them.
But the nerdy vitriol is not just poured on the underground seeders. The anti-copyright movement has accused the RIAA of being itself a terrorist organisation – drawing on its aggressive use of the legal system. The RIAA and other such organisations have also been accused of ‘copyfraud’ – the deliberate claiming of copyright on information in the public domain. In 1984, Universal Studios sued Nintendo to stop them from profiting on their new Donkey Kong arcade game, on the basis that Donkey Kong was too similar to King Kong, which they had a copyright over. Nintendo’s lawyers showed that Universal had argued against RKO General in 1975 that King Kong was in the public domain. Nintendo won the appeal. Bad form Universal, bad form.
One thing is for certain: this is not just an issue fought on the forum boards of underground Swedish peer-to-peer websites. Go grab your iPod. Scroll through your songs – ask yourself where you got them. Can you claim ownership of them? It’s probable that you can’t. Now ask yourself… Do you really feel like a criminal?
This article has focussed on the intellectual property aspect of entertainment. It’s an important issue – but holistically they aren’t life and death decisions. In Africa, the debate over intellectual copyright and drug patents is a life and death issue. Drug Corporations hold patents over the most profitable and successful drugs on the market. Of particular concern is their refusal to allow African Governments the ability to break patent law — so they can develop cheap and accessible HIV/AIDS drugs.
Even from an economic perspective intellectual property protection of drugs patents is silly. There is a vast untapped market literally dying for drugs. Drug companies are not being pareto efficient. If they did lower prices, or allow nominal fees for use of drug patents they would be better off, and not at the expense of others. The slight flaw in this analysis is that savvy businessmen could buy drugs and then sell them in the West – but assuming proper border control it shouldn’t be a problem.