A vendor selling a copy or imitation that is misrepresented as the genuine article is committing a falsehood, a deceit. This has been recognised as something that should be prohibited since time immemorial.
However, a vendor selling a copy or imitation that is honestly represented as a copy, derivative, or imitation of another work is committing no falsehood or deceit. This has also been recognised as something perfectly natural and to be embraced since time immemorial. Man has progressed precisely through a process of sharing knowledge, copying songs, stories, tools and techniques and improving them.
The unnatural law that was introduced in 1710 by Queen Anne was the privilege of a reproduction monopoly granted to printers of literary works, and this at a stroke suspended the public’s right to make copies – a natural right that they had enjoyed as part of their natural liberty since time immemorial.
So, what happens when the public find themselves in possession of ever more powerful reproduction technology?
- The people are in fundamental conflict with those in possession of the privilege that suspends their liberty.
To say, because the 18th century privilege is still law three centuries later, that it is therefore the law that is right and the people who are in the wrong is to blind yourself to the reality of the conflict, to refuse to recognise the nature of people and information.
The Digital Economy Bill is simply yet another attempt to provide the privileged with additional legal sanctions, to effectively give King Canute yet more extreme powers to hold back the incorrigibly disobedient tide.
The Internet is essentially a system for instantaneously diffusing (distributing & reproducing) digital, intellectual works. A transferable 18th century privilege that requires that no-one distributes or reproduces an intellectual work without permission from the holder of that privilege is at best an anachronism, and at worst an unethical statute that should never have been enacted.
This writing is on the wall. If you hesitate to copy it and freely distribute it among your peers you are not dutifully respecting the privilege and law that suspends your liberty to do so, but committing yourself into ignorance and cultural suicide.
About this:
The unnatural law that was introduced in 1710 by Queen Anne was the privilege of a reproduction monopoly granted to printers of literary works, and this at a stroke suspended the public’s right to make copies – a natural right that they had enjoyed as part of their natural liberty since time immemorial.
Are you sure? I believe that the law was actually a considerable liberalization, in that prior to its passage, the freedom to print anything was strictly limited to royally chartered guilds, the output of which was subject to review by the Church.
In other words, even authors didn’t have the right to print their own works. The act of printing itself was monopolized.
In 1709/10, this changed. The right to print (not copy, mind you, but to simply print) was vested in authors, who could subsequently name their own terms when negotiation with the guilds – which were barred from printing new material (i.e. less than 14 years old) without the author’s permission.
I don’t think this changes the thrust of you argument, but it’s important to understand how the law evolved of you want to see in continue its slow but ancient trajectory towards freedom.
Comment #000376 at
2010-03-11 08:32
by
Yes, prior to the Statute of Anne, there were de facto monopolies, and various edicts either permitting or constraining printing (and not just in England). However, 1710 marks the point at which the suspension of the individual’s right to copy published works was permanently established, the final nail hammered in, reserving such copying as the transferable privilege of a copyright holder.
I do not intend to imply that prior to 1710 people were blissfully engaging in free cultural intercourse. Far from it.
Everyone should read up on the history of copyright and all that precedes it to make up their own mind as to whether we are on a trajectory toward freedom or away from it.
Comment #000377 at
2010-03-11 08:56
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Crosbie Fitch
Um, I think there may be another historical error here – specifically, your suggestion that copyrights were transferable beginning in 1710.
In fact, copyrights were not considered property – at least at the outset. They did not acquire property’s defining characteristic (legally transferable title) until the latter half of the 19th century. This development followed a century of cultural and economic development in which the publishing trade became enormously powerful. Only at this point did the notion of privilege as a function of property value become a matter of serious commercial consideration.
After all, copyright (really, print-right) was initially a mechanism for censorship. It was exercised by the church and crown, and existed not to govern the flow of commerce, but the flow of ideas themselves. Only after this restriction was relaxed could the commercial side of printing really take off. And again, it took more than a century before it was developed enough to demand its own modification to the law (specifically, the transformation of author’s rights into property rights).
Comment #000379 at
2010-03-11 17:55
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Alex, this is not really the place to argue the minutiae of copyright’s complex history. My point remains that copyright IS a transferable privilege and was ESTABLISHED by the Statute of Anne in the 18th century. It is not inaccurate to describe it as a transferable 18th century privilege.
That various aspects of copyright have changed over the years doesn’t change that essential point. One can also quibble over the nuances and meaning of assignable vs transferable, that the latter term may not have appeared until later acts, but I don’t see that linguistic distinction as important as the one between right qua privilege (legally granted right) and right qua right (natural right).
When you say ‘another historical error’, what was the other one? Do you still dispute the accuracy of the first passage of mine that you quoted?
Here’s a more expansive description of copyright as enacted by the Statute of Anne – I embolden the part about assignablility, that it was not usually the authors who remained holders of the privilege:
During the course of the seventeenth century, copyright became intertwined with politics and censorship. The Company of Stationers, which received its legitimacy from a royal charter, rode through the turmoil of the civil war and restitution of the crown, but the previous arrangements to bring order to the trade slowly changed into arrangements to control the press. The Licensing Act that governed the book trade expired in 1692 and the House of Commons refused to renew it. There were many reasons, but one of them was the belief that the Stationers had abused their monopoly.
Chaos ensued. The book trade went from a tightly regulated enterprise to a wide-open free-for-all. The stationers petitioned Parliament for relief, and it finally came in 1709 with the Statute of Anne. The outcome wasn’t exactly what the stationers wanted.
The Statute of Anne was an attempt to restore order to the book trade and, at the same time, to address perceived abuses by the stationers. It provided two kinds of copyright. For past works, it extended the stationer’s copyright for a period of 21 years. For future works, it gave the author (or any assignee!) the exclusive right to print the work for 14 years, with the stipulation that the right could be extended by an author for another 14 years. There are two important points here. First, the statute allowed people outside the Stationer’s Company to hold the copyright (although it was the assignees rather than the authors who normally held it). Second, the statute attempted to break the monopoly of the stationers by limiting the term of copyright — a radical change for the stationers, who until then had enjoyed perpetual copyright.
From “Copyright and Authors” by John Ewing
Comment #000380 at
2010-03-11 18:44
by
Crosbie Fitch
Really enjoyed Ewing’s essay – thanks for the link.
However, I’m still surprised to see you glossing over what seem (to me at least) to be important details. After all, one of the things I’ve always admired about you is your unwillingness to be anything less than absolutely precise. Your systematic differentiation between rights and privileges is a case in point, and an prime example of the clarity that is so conspicuously absent from most copyright discussions.
That’s why I find your equation between assigning rights (sorry, privileges), and selling them outright to be so remarkable. Put simply, these are not the same. A rough analogy can be made in the difference between renting an apartment and buying one. Sure, you can say the apartment you rent is ‘your’ home, but of course, it isn’t really. Same thing goes for a publisher that has simply been assigned a publication right. Even if the assignment is perpetual, this arrangement can still introduce important limits (equivalent to rules against sub-leasing) that dramatically limit a publisher’s capacity to exploit the work.
From their perspective, this is an enormous difference. It may not be apparent to the author, who sees no practical difference between having to assign his copyright and sell it, especially when both transactions come with equivalent terms and result in the same thing (publisher places a bet by risking the costs of distribution / author gets paid something in the process).
However, when you consider what happens on the other side of the table, you’ll find that the ability to formally own, stockpile, combine, and resell these privileges leads to dramatic changes in their behavior of publishing enterprises (to say nothing of their commercial prospects). This shift is especially pronounced when you move beyond books, images, compositions, and other forms of expression that generally stem from solitary authors, and consider expressive forms that are born from collaboration, such as encyclopedias, films, symphonic recordings, mass media broadcasts, and grand architectural plans.
So again, there’s a vital difference between psudeo-property rights (such as the ability to assign, introduced in 1709), and the ability to flat-out sell, which didn’t come into play until England’s Copyright Act 1842 declared that copyrights were personal property in the fullest sense, and thus (and for the first time) capable of bequest. This significant development didn’t ‘go global’ until 1889, when the Berne Convention harmonized the different copyright laws maintained by its signatories so that they all included this definition of copyright as fully transferable property – nearly 200 years after the Statute of Anne.
On a separate note, while I enjoyed Ewing’s essay, I’m worried that his perspective may suffer from being too narrow, leading to a less nuanced view than the circumstances demand. For instance, while he may be correct to note that the Statue of Anne was not passed due to an abiding concern with author’s well being, it did reflect a (well-placed) concern that the unrestricted power of the Stationers had risen to the level of a national security threat. Ewing made no mention of this larger concern and I think his argument suffers for it.
In truth, matters were far less one-sided. After all, by this point the practical value of the scientific revolution had becoming abundantly clear – particularly with regard to astronomy, navigation, and the resulting conquest, accumulation of wealth, and ability to employ armies.
Even if the Crown didn’t care about individual authors, they recognized that a culture hostile to free inquiry and the liberal circulation of ideas would align them with historic enemies like Spain and Portugal (both in serious decline) and at a disadvantage in relation to powers like France and Holland (both ascendent, scientifically savvy, leery of domination by clerics, with the latter home of the Dutch East India Company).
So yes, the Stationers may have clung to some of their power through all-too-familiar means to do so (“pity the artist!”). And yes, we’re still living with some of the myths they managed to invent. But on the other side of the coin, they were fighting a losing battle against a new kind of progress (scientific) which has also continued unabated, and which, 300 years later, is having the last laugh by decoupling matter and media for good.
It’s a total shitshow, as you recognize better than most. And there’s a lot of deliberate obfuscation as a result – which is why I think it’s unwise to gloss over the exact legal meaning of some of the debate’s most central terms. If the object of the game is to disentangle the myths that persist, then it seem important to note that copyright as property – and not simply assignable privilege – is a 19th Century invention.
Comment #000381 at
2010-03-13 15:34
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Alex, I’m not trying to belittle the difference between assignability and transferability per se. I’m only saying that quibbling about it may be interesting, but it does not invalidate my original article.
I made no claim regarding this aspect of copyright in the original article. It may well be an interesting historical detail, and I encourage readers to read up the history for such details.
You appear to be suggesting that I’ve made two historical errors. I don’t see that I’ve made any, but you may yet convince me otherwise.
Omitting what you regard as essential historical points may be an editorial shortcoming in your view, but I don’t believe this constitutes historical error on my part.
Do you disagree with any of the following:
1) 1709 is the last year in which the individual’s natural right to make copies of published works remains underogated by legislation.
2) Copyright is a privilege enacted in the 18th century, and therefore can be described as an 18th century privilege.
3) Copyright is a transferable privilege and therefore can be described as a transferable 18th century privilege.
My use of ‘transferable’ is not to focus on the precise manner in which copyright is transferable or can be treated as a legal property, nor to imply that no legislative changes have occurred in its transferability/assignability since 1709.
I’m using ‘transferable’ to add weight to my point that natural rights are inalienable whereas privileges aren’t.
The inalienability of a natural right is a matter of natural law, not legislation. Legislation may stipulate that the holder of a privilege may neither assign nor transfer their privilege (as with droit de suite), but that doesn’t make the privilege an inalienable natural right.
Comment #000382 at
2010-03-13 17:17
by
Crosbie Fitch
CF,
I disagree with all three points, though with some moreso than others.
More importantly, I see the general thrust of this argument – that the 1709 law represented a sudden and sweeping suspension of liberty – as very unsound. Far from being the regressive act that this framing suggests, I see it as a fundamentally liberal proposition, and one that paved the way for greater liberalization – even as it introduced elements that grew into barriers to that larger trend.
When it comes to successfully framing present-day issues (i.e. to do so in a way that persuades more people of copyright’s illiberality), it seems to be critically important that the larger trend be represented correctly.
In response to your specific points, consider the following.
1) When saying “1709 is the last year in which the individual’s natural right to make copies of published works remains underogated by legislation.” You make no distinction between mechanical and non-mechanical copies.
With regard to non-mechanical copies (i.e. transcriptions by hand) I don’t believe the law said anything one way or the other. After all, the process is so labor intensive as to be irrelevant to the act of publishing in any conventional sense of the word.
And with regard to printed copies, the public’s right had been well and truly derogated long before 1709. That was the whole point of the printing guilds – not simply to extend monopoly powers over specific works, but to monopolize the very act of printing. That is to say, prior to 1709, it was illegal to simply own or operate a free press. Moreover, the law that was superseded in 1709 gave specific authority to members of the Stationers guild to hunt down and destroy presses that were not owned and operated by the guild. To suggest that this environment was one in which “individual’s natural right to make copies” was respected is – frankly, absurd. How can a person be ‘free’ to do something when possessing the means of doing that thing is a crime? That’s like saying you’re free to write what you like – just don’t make any use paper, pencil, or ink.
Of course, the ability of anyone to operate a press – even to publish the King James Bible – was, itself, a major liberalization. Prior to the Reformation, vernacular copies of the Bible had been outlawed, as had – at one point – the freedom to even read the Bible. Forget about physically copying (an inconceivable liberty) – simply going to existing sources to create a direct mental impression instead of relying on the interpretations of clergy was considered a no-go.
So sure, the ‘right’ to copy may have existed (indeed, it did, and was well exercised in any number of matters, from agriculture to military strategies). However, like any other human right now widely accepted today, it wasn’t recognized by the prevailing authorities – at least not with regard to printed materials. Indeed, the right to copy anything may not have been regarded as a right at all, and was instead considered (if considered at all) as something reflexive, like the ‘right’ to eat, sleep, or breathe. And again, acceptance of this reflexive freedom had never been extended to books.
So with regard to point 2, no – copyright – in the absolute sense – was not enacted in the 18th Century. Yes, the first example of a law that reflects aspects of our own may have been introduced in the 18th Century (which is why this is called the first modern copyright law), but copyright taken literally – which is to say, the right to make literary copies – was firmly restricted long before 1709.
The importance of the 1709 law (in my view, at least) is that it separated the act of making copies in general from the act of making particular copies. By severely limiting the power of the state to limit the production of copies in general, the market for the making of copies expanded dramatically. The fact that more individuals took advantage of the law’s monopoly protection did not mean that the scope of copyright law changed dramatically. After all, it only applied to books (which has always been subject to limitations) and it only applied for 14 years (a major reduction from the perpetual monopolies that existed prior t 1709).
What we now see at the major expansions didn’t take place until the next century, when the duration of the law’s protection was amplified, along with the number of expressive forms that it covered.
Your larger point, that no true right is transferable – is well taken. Once you adopt the basic view that the rights of man are intrinsic and inalienable, you understand that the definition of a right is something that cannot be granted by law – period. It can simply be recognized and protected. Obviously, something transferable fails this test immediately.
What I find interesting is that the original 1709 law was closer to this original sense of right, as opposed to its more modern incarnation as a simple privilege. Throughout the 18th Century, hiring a printer seems to have been more like hiring an accountant or a lawyer. That it to say, they were authorized to exercise your rights on your behalf, but at no point were they allowed to operate independently, or contrary to your interests.
But once copyright became fully transferable (as opposed to merely assignable), this limited relation between author and agent evaporated. Once a right has been given title and sold off, the author had no further claim whatsoever, and the owner of the right had no obligation outside of the agreement to pay. Of course, some countries accepted the idea of the author’s moral right – allowing them to renounce any work that was altered insufferably – but that didn’t become a universal convention. And again – all this happened in the 19th Century. Even if the seeds of this development were planted a century prior, I think it’s misleading to suggest that they attained their present form immediately, or that the authors of this law actively condoned an interpretation of their act that did not, in fact, develop for another 140 years.
So put simply, Queen Anne predated the idea of copyright as titled and fully transferable property by a long time. While the development of copyright as property may represent a fundamental injustice, it’s unfair to lay it at the feet of people who were dead well before its introduction.
The most important point of all is that recognizing the public’s right to copy is actually a very new development. Because is has – for economic reasons – been considered a privileged (in that very few were privileged enough to afford a press), we’ve not considered whether the act itself is a fundamental right.
Returning – again – to the notion of rights as intrinsic qualities of being human that can’t be granted by law, and can only be recognized by law, it’s only now – when the means to copy and distribute have become so advanced that these acts seem like walking or breathing – do we finally start to consider that, perhaps, we’ve been wrong to ever think of them as privileges. Only now is it dawning on many people that this has always been a fundamental right. For those who measure the progress of history by the extent to which governments first recognize, then accept, and finally protect these rights, the ability to use the internet in the most natural fashion becomes the vanguard of legal development.
My suspicion is that this is truly uncharted territory. Even if the 1709 law did establish the trajectory of current thinking, its grant of privileged hardly overturned a robust and well-established concept of right. To the contrary, recognition of the natural right to copy literary works was so anemic that only now – 300 years later – is is even beginning to be discussed seriously.
To that end, I think the most important step is the reflexive framing of copyright law as a matter of privilege, and not a true right – which cannot be transferred, and can only be limited in response to a specific criminal charge, and the due process of trial in an open court.
Comment #000383 at
2010-03-18 16:05
by
You make many good points Alex, and I would have been more disposed to discuss them had they not been made in support of your claims of two historical errors on my part (of which I remain unconvinced).
I continue to see the three points I posed in my previous comment as correct. That you cannot agree with them helps explain your position that I have made historical errors.
Anyway, here’s another recent post you may be interested in concerning the Statute of Anne and the significance of 1709/10 in copyright’s history: Blawg Review #258
“Obviously the Statute of Anne, having been put in force 300 years ago, almost to this day, is no longer good law in any jurisdiction. In fact, almost immediately after it was enacted it began to be transformed. But it stands as a turning point in the history of English law-based systems by being the first true instance of copyright law as we’ve come to know it.”
Comment #000386 at
2010-04-06 11:37
by
Crosbie Fitch
The Need to Exchange · Thursday February 25, 2010 by Crosbie Fitch
On one side we have artists apparently giving their work away, and on the other we have their fans apparently wanting to give their money away, to donate it to them.
The mistake on the part of FairTunes, TipJoy, Kachingle, Flattr, etc. is to perceive the fans’ wish to give as a demand for a donation facility – to match the Internet’s facility in helping artists give away their work. It’s a mistake in the same way that someone might think people jumping from a ship need a diving board instead of a liferaft.
There is a more fundamental need that developers of donation facilities are failing to recognise. This is the need for an exchange.
As has been demonstrated in mankind’s long history there is a far more efficient and productive means by which people exchange their work for the money of those who want it.
It’s known as a market. A place where people with work offer it in exchange for money, and people with money offer it in exchange for work. Neither adopts the approach of ‘give it away and pray’.
We are finally recognising that the market for copies has ended, that the monopoly of copyright can no longer protect the sale of that which everyone can illicitly produce themselves for nothing. The role of the intermediating publisher to convert their purchase of art from the artist into the sale of mass produced copies to a mass market is coming to an end. Artists must now look to the arrival (or return) of a disintermediated marketplace, one where the artist and their fans directly exchange art for money, money for art.
I’m working on such a market. I call it the Contingency Market. It enables deals such as “If you publish a new article, I’ll pay you $x”/“If you all pay me $X, I’ll publish a new article”.
Could you clarify: “developers of donation facilities”?
The internet has theoretically put the middleman out of business. Artists can now market directly to the fans.
Of course there may still be room, in a limited context, for middlemen who can provide a degree of value added. Artists, I doubt, would want a manufacturing facility. The middlemen might have a manufacturing facility that can generate the customized merchandise what the fans want from a variety of artists.
Comment #000373 at
2010-02-28 03:36
by
Donation facilities are things that make it easier for people to donate money to artists or other organisations that those people feel deserve their support, a monetary token of their appreciation, a reward for the good work they’ve done and are likely to keep doing.
‘Developers of donation facilities’ are people or organisations who develop such easy-to-use online payment mechanisms, e.g. those who developed FairTunes, TipJoy, Kachingle, and Flattr.
The Internet is an extremely efficient communications and publication facility, greatly assisted by such things as Google’s search facility. One no longer needs the use of a ‘manufacturing facility’, printing press or CD duplication plant to publish, reproduce and distribute one’s intellectual works.
Perversely, it remains very difficult to pay the producers of such works to produce further work. It is difficult even to donate money to such producers by way of reward. This is why we keep seeing people develop donation facilities. However, exchange facilities are even thinner on the ground, with very few people developing them or even recognising a need for them.
One can easily dispense with a middleman or publishing agent who’ll take a 99% cut, if all you want to do is publish-for-free. However, if you want to get paid for your work, the 1% revenue share begins to look attractive. But then the 99% share looks very attractive to those traditional publishers who also now no longer need expensive plant to manufacture and distribute copies to retailers. There’s a bit of a gap in the market for a means of getting 100% of customer revenue to producers. However, that’s customer revenue, not donor revenue. A customer is someone who agrees with a vendor to exchange an agreed amount of money for an agreed amount of work. A donor is simply someone who throws an arbitrary number of coins into a street performer’s violin case.
There are indeed people who want a facility to throw coins into a violin case (and have 100% of them actually arrive in it). However, there are also people who want to commission a professional violinist to record a studio performance of a classical work and have 100% of that commission (instead of 1%) reach the violinist (the violinist is quite keen about this too).
Comment #000374 at
2010-02-28 13:09
by
Crosbie Fitch
Music/Recording/Copy · Friday February 05, 2010 by Crosbie Fitch
There are three words that the record labels love people to conflate: Music, Recording, and Copy. These are glued together by corruption, by the labels’ 18th century privilege of copyright. They’re happy for you to believe that when you buy a CD you’re buying the music.
However, once you dissolve the despicable glue that creates that illusion, you can properly separate those three concepts and realise that the recording is not the music, and the copy is not the recording. You can also realise that the copy is not the music.
It is critical to distinguish between these elements in order to distinguish between the respective amounts of work that goes into their production. It’s then possible to figure out what the heck you as an artist should be selling, e.g. a piece of plastic that costs a penny for a thousand times that amount, or precious hours of your life preparing and performing in a recording studio for a goodly day rate.
I have been having this discussion with Suzanne Lainson on TechDirt.
The artist has traditionally sold their studio recording to the label (in exchange for whatever the contract stipulated), and this has been the case for decades. So, let’s agree that the artist is familiar with the process of selling the recording (of their music, in a studio performance).
Like a label, the artist is also familiar with the process of selling copies of their recording, e.g. CDs via mail order.
However, very few artists are familiar with the process of selling their recording to their fans.
The figure I use of $10,000 is just an example. Obviously the actual amount depends on the artist, the size of their audience, and the number of fans interested in commissioning them to make a recording.
But let’s say the artist did accept $10,000 from 1,000 fans in exchange for a studio performance, a recording thereof, and the (copyleft) release of that recording to those fans.
It becomes the property of all those fans (as well as the artist), and it becomes the property of whoever those fans distribute it to, whether for love or money, e.g. via public file-sharing networks.
- The artist gets paid $10,000.
- The fans get a new studio recording of the artist that they wanted.
- Everyone keeps their liberty (no-one gets prosecuted for file-sharing, playing it in public, or remixing it, etc.).
You may think $10,000 is too low. Sure, perhaps you have a thousand wealthy fans who can afford $100 each, or a million fans $1. The point is not the price, but the exchange of the recording with the fans for their money – and that it’s nothing to do with the sale of copies, or any monopoly.
And no, fans don’t sit in the studio. That would make it a live performance and ticketed event. The fans are only buying the recorded studio performance, and this enables the artist to sell their music via that recording to a global fanbase, without the hassle of everyone having to fly to a large stadium somewhere.
Once the deal has been done, the recording has to be delivered to the fans who commissioned it, e.g. FLAC files via BitTorrent, or even commemorative DVDs (for an additional amount). Those fans can then redistribute it as MP3s and/or remix it as they see fit.
Let’s recap
The copy is a means of communicating a music recording, but the copy is not the music, nor the recording – and the recording isn’t the music.
The music takes talent and is made by talented musicians, whose talent can obtain a high market value.
The recording is not the music. It is a recording OF the music.
The recording takes skill to get ‘just right’. Recording engineers’ skill can be highly valued.
The copy is not the recording. It is a copy OF the recording.
The copy takes zero skill to produce and takes a microsecond. There is no market for the skill or services of people who make digital copies – because everyone and their dog can make millions of them in double-quick time for next to nothing.
So sell what takes talent and skill – the music and the recording of it. Then the copies are as free as nature makes them.
And let’s not forget, so then are the people: Money for art, liberty for people.
That makes so much sense… to every one but the parasitic labels.
Excellent piece!
Comment #000366 at
2010-02-06 13:53
by
Do you think there is a place in then industry (ie. like a new business model) for music labels in the future?
Probably not a business based on “just selling copies”, but maybe by promoting and patronaging their artists, arranging concerts, selling limited editions, organizing stuff?
Thanks.
Comment #000370 at
2010-02-17 14:35
by
Maniquí
Maniquí, I daresay promotional, or more appropriately, discoveral agencies will arise to help fans discover the artists that suit their taste and commission their studio and live performances.
I doubt that the DNA of existing labels permits them to undergo such a paradigm inversion.
Comment #000371 at
2010-02-17 15:08
by
Crosbie Fitch
Dear recording artists, please at least consider the possibility of selling your recordings directly to your fans rather than to a record label, or worse, rather than trying to make and sell your own copies.
As yet, very few musicians have sold their recordings directly to their fans. There aren’t many facilities to do so either. You could certainly have a go tomorrow, but given a dearth of facilities and the unfamiliarity you and your fan base will have in purchasing or commissioning your recordings, at this stage you are as much likely to find it a damp squib as a roaring success.
There are two discrete situations in which one could sell a recording:
- You have already produced a recording, but have not yet released/published it. You are interested in your fans’ best offer in case it may be better than that of a record label.
- You are interested in producing a recording, and invite record labels and your fans to tender their offers of commission.
There is also a continuous process of selling one’s recordings:
- You regularly produce and release recordings to your audience by way of ‘priming the pump’. You invite your keenest fans to commission the release of subsequent recordings. The initial releases are thus promotional loss-leaders to build the fan base to a size where their subsequent commissions match and possibly exceed your costs of production.
In all cases 1-3, the purchaser of the recording effectively ends up with the right to make copies. If you sell a recording to a label, they get any copyright (the privilege that suspends everyone else’s liberty to reproduce it). If you sell a recording to your fan base, any copyright is neutralised (your fans’ and everyone else’s liberty to reproduce it is restored). Indeed, when selling recordings to your fans, copyright becomes a redundant nuisance to be disposed of, rather than a privilege to be sold to those unscrupulous labels who’d exploit it in their sale of copies.
At least when an artist sells a recording to their fans, they retain all their (natural) rights. When an artist sells a recording to a label the artist loses their liberty to make copies by transferring away the privilege that suspends it. When an artist sells a recording to their fans they retain their liberty to make copies because this is a consequence of neutralising rather than transferring their privilege of copyright. In other words, the artist is also a fan (their own fan) and so similarly enjoys the restoration of their liberty to share and build upon their own work.
The recording (as deliverable) comprises the digital master and all components thereof as would typically be expected by a record label. If sold to one’s fans, then at the point of exchange this must be supplied or made available to the purchaser (one’s fans), e.g. as FLAC files via BitTorrent. Anyone (including the recording producer) can then sell material copies (media and delivery costs) in instances where such delivery of the recording is preferred, e.g. on DVD-ROM.
In the other direction, the sale price that the artist agrees is equitable in exchange for the recording (say $10,000) is provided from each fan (say $10 from each of 1,000) and delivered to the artist (or the company representing all those involved in the production of the recording). Typically, each fan will pay the same amount, but some schemes may involve variations.
There are umpteen other issues, but I’ll keep things brief.
This is not an investment in the artist, but the sale of a recording. The fans get the recording they want. The artist gets the money they want. Moreover, everyone gets their liberty restored.
In terms of facilities that exist today, one could attempt to shoehorn eBay’s Dutch auction to sell 1,000 ‘shares’ in a recording – if you reckon you’d easily sell out and the minimum bid price was around $10 (if you hoped for at least $10k). This also has to pass eBay’s scrutiny as the sort of auction it’s happy to see (doubtful).
Alternatively you could try Kickstarter. See Pros and Cons of the Kickstarter Model by Kristen Strezo. For background reading see 1,000 True Fans by Kevin Kelly and my article Selling Music Recordings.
Predictably, the more artists that start selling their recordings to their fans, the more facilities will be developed, and the more familiar fans will be with this means of encouraging their favourite artists to produce recordings for them.
However, it is important to note that ‘more facilities’ means ‘less overhead’. The more facilities there are to enable artists to sell their recordings to their fans, the more competition there is to provide artists with more efficient service at ever lower prices. Contrast that with a single taxation and disbursement administration that has every incentive to ratchet up the costs and overheads of its inefficient and uncompetitive service.
As we should learn from history, privileged cartels and government backed central services are the entities to establish ONLY if you want less rather than more of your fans’ money.
So, cut out the middleman! Or at least ensure that there’s a highly competitive environment such that any middlemen have to be extremely fit, lean and cost conscious if they expect you to use them in selling your recordings to your fans. If you create a tax instead, you’re creating one humongous Jabba the Hutt and very little prospect of seeing much more than a tiny trickle of treasure leak from its greedy clutches.
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This article is based on this comment in my discussion with Indiana Gregg at a2f2a.com
How is this different from selling your own cd’s or mp3’s to your fans? It seems more straight forward to just copyright your own work and distibute it yourself…
Comment #000562 at
2012-04-05 20:05
by
These days, it is actually more straightforward to let your fans copy and distribute your work. Why appoint a record label to do this under copyright at great expense (not least the litigious threat to your fans)?
With distribution catered for, all that’s left is to invite your fans to commission your next piece of work. Why let a record label take 99% or more of your fans’ money simply to avoid the hassle of making a deal yourself?
Comment #000563 at
2012-04-06 09:10
by
Crosbie Fitch
A vendor selling a copy or imitation that is misrepresented as the genuine article is committing a falsehood, a deceit. This has been recognised as something that should be prohibited since time immemorial.
However, a vendor selling a copy or imitation that is honestly represented as a copy, derivative, or imitation of another work is committing no falsehood or deceit. This has also been recognised as something perfectly natural and to be embraced since time immemorial. Man has progressed precisely through a process of sharing knowledge, copying songs, stories, tools and techniques and improving them.
The unnatural law that was introduced in 1710 by Queen Anne was the privilege of a reproduction monopoly granted to printers of literary works, and this at a stroke suspended the public’s right to make copies – a natural right that they had enjoyed as part of their natural liberty since time immemorial.
So, what happens when the public find themselves in possession of ever more powerful reproduction technology?
To say, because the 18th century privilege is still law three centuries later, that it is therefore the law that is right and the people who are in the wrong is to blind yourself to the reality of the conflict, to refuse to recognise the nature of people and information.
The Digital Economy Bill is simply yet another attempt to provide the privileged with additional legal sanctions, to effectively give King Canute yet more extreme powers to hold back the incorrigibly disobedient tide.
The Internet is essentially a system for instantaneously diffusing (distributing & reproducing) digital, intellectual works. A transferable 18th century privilege that requires that no-one distributes or reproduces an intellectual work without permission from the holder of that privilege is at best an anachronism, and at worst an unethical statute that should never have been enacted.
This writing is on the wall. If you hesitate to copy it and freely distribute it among your peers you are not dutifully respecting the privilege and law that suspends your liberty to do so, but committing yourself into ignorance and cultural suicide.