Before I launch into my latest tirade, I want to reemphasize something that I stated way back in my seminal political post "The Book of Laws", and have espoused ever since.
There are relatively few things that I can confidently say that I hate, but fundamentalism is one of them. When I say fundamentalism what I mean is this: the refusal to adjust one's opinions or beliefs in the face of compelling contradictory evidence.
Given this strong belief, I am firmly committed to changing my mind on anything I have ever written in this blog, if someone presents me with a compelling and rational argument to the contrary, supported by sufficient evidence. That includes what I am about to write.
The reason I wanted to be clear about that is because what I am about to write is pretty controversial, and given the extent of my knowledge on the issue, there is a reasonable probability that my opinions could be biased. Please, record companies, give me a reason why I am wrong...
My understanding of the purpose of copyright is this: it exists to facilitate the creation of creative works, and to allow the author of said works to reap the economic benefit of the intellectual product he/she has created. I think we can all agree that the makers of music, video, literary works and software have rights to the economic benefits of their work. I also think we can agree that these artists have what are called "moral rights", where they have a right to be credited as the creator of a work.
Copyright does not exist to distort the market for creative "goods", and force people to pay for a good that has no value. In fact, laws that exist for the purpose of corporate welfare or supporting uneconomic enterprises are against everything that capitalism is, because they promote inefficient distribution of resources in the economy.
Nonetheless, for certain types of works covered under the Copyright Act, such distortion is occurring. I have two major issues here:
The first is requiring a royalty for the live performance of a copyrighted song. I can understand credit having to be given to the songwriter for moral rights purposes, but buskers having to pay royalties, and thousands of people every day technically in violation of the Copyright Act because they are singing "Happy Birthday" in public seems a little ridiculous.
The second, and more controversial topic is what I perceive as unjustified government support of unnecessary businesses.
In my understanding, the royalties from sales of music are a relatively small part of income for most artists, especially lower-profile artists. The majority of musicians derive most of their income from live performances. More popular bands are able to negotiate better deals with their record companies, but artists, on average, receive about 9 cents per 99c iTunes download. For a CD, artists might receive somewhere between 30c and $1, depending on their recording contract. That level of compensation doesn't seem like it does a very good job encouraging artists to create music.
Nonetheless, record companies, distributors and others have proposed increasingly severe restrictions on people's freedom in order to remain profitable. From prosecuting people who have downloaded music to attempting to force ISPs to release confidential information or "throttle" their subscribers to getting taxes opposed on blank media, it seems as if these companies have serious undue influence over the government.
In order to justify these restrictions, it seems to me that there would have to be what is often called a "compelling state interest" to restrict the freedom of citizens to do whatever they want with their digital music files.I think we have already established that preventing file-sharing will have a smaller impact on artists than is generally believed, and will certainly not stifle creativity in music. This case is actually strengthened by some other factors:
1. The amount of money artists will receive for their music recordings looks likely to continue to decline in the future. It has been correctly pointed out that after the full transition from CD to digital music, it is highly unlikely there will be another format change in the foreseeable future (such transitions have forced people to buy the same music over and over again in the past).
2. Even if file-sharing was entirely legal, my empirical observations suggest that people would still be willing to pay for added convenience; sometimes it is much faster/easier to buy music from iTunes as opposed to hunting it down on p2p networks.
3. Some of the characteristics displayed by record companies arguably suggest that their existence actually restricts the distribution of music in an oligopolistic way. Because record companies have so much control over what music is used in radio, television etc, an argument can be made that they are actually distorting the free market for music.
Absent a compelling state interest to protect the economic livelihood of artists, I cannot see what other interest the state might have to justify overbearing copyright laws. The economic value of distributors has been eroded by the Internet to the point where like encyclopedia publishers and travel agents, they no longer provide a useful economic service. Record companies do provide other services besides distribution (like publicity and access to market) that may still be economically useful, but that isn't the point here.
Additionally, changing copyright laws should have the additional positive effect of reducing a key disparity between profit and contribution in our society. I have previously identified celebrities as one of the groups that makes enormous amounts of money while not contributing an equivalent amount to society. If this is a way to actually reduce the incomes of celebrity artists while not affecting the vast majority of artists that are not compensated to that level, so much the better.
I would present a different, but related argument in relation to television broadcasts.
For TV programs, I would argue that there are already a multitude of ways for viewers to watch a TV show after the original airing. Almost all shows are now available on network websites, as well as websites like Hulu. Additionally, the prevalence of PVR technology allows anyone to record shows and watch them at their convinience. Given the ubiquity of TV shows after their original airing, and the existence of time-dependant value for TV shows (many consumers prefer to watch the original airing as opposed to downloading some time later), I don't see a compelling state interest here to crack down on file sharing here either.
For now, here are the specific changes I would advocate to Canadian copyright law:
1. Include an exemption in the Copyright Act that provides for the live performance of someone else's musical work in a public place as long as there is no specific fee charged for listening to the performance.
2. Amend section 80 of the Canadian Copyright act to replace "sound recording" with "sound or television recording" and "musical work" with "musical or television work"
3. Strike section 80(2)(b) of the Canadian Copyright Act, thus allowing the non-profit distribution of digital music and television files.
4. Add a section in the Copyright Act preventing file-sharing sites from displaying advertising content not related to material available for download on the site. This prevents p2p sites from profiting from file sharing without the implied consent of the artist.
5. Prevent the establishment of blank-media levies.
I'll think more about what should be done about films and other forms of media for a future post. I didn't include them here because I haven't yet formed a concrete opinion.
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