Who Really Owns Music?

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Who Really Owns Music? By BRENT SILBY
Philosopher UPT School Christchurch, New Zealand

I remember buying music CDs for around $20. At the time, it seemed quite reasonable to pay for CDs. After all, I was taking possession of a tangible artifact--a thing that cost something to produce. I was well aware that a proportion of the CD price was being paid to the original performers and composers, and that didn’t bother me. The fact that some of these performers became multimillionaires was testimony to their skill in producing music that sold so well. But times have changed, and I am now questioning this old economic model.

You-Tube Troubles Recently, video hosting website You-Tube has run into difficulties with music publisher Warner. In 2006 Warner started legal proceedings against You-Tube seeking damages of around 1.5 billion dollars. This action was taken as a consequence of the number of music videos being posted on You-Tube. Now, the owners of You-Tube do not post the music videos themselves, but as hosts they are directly responsible for the content being uploaded to their site. Since You-Tube’s inception users have uploaded tens of thousands of music video clips. These are viewable by the public for free, and therefore publishers such as Warner are missing out on valuable profits.

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When Google purchased You-Tube in 2007, Warner suspended their legal action. This was a result of a deal worked out with Google, which saw Warner being paid a percentage of the advertising revenue generated when people view music videos on the You-Tube site. They have now reinstated the legal proceedings, and Google has been forced to remove thousands of music videos from You-Tube. Is this fair? For many people the answer is “yes”. After all, Warner does, in fact, own the music videos, and if they are being distributed for free then Warner cannot gather revenue from the product they own. But wait! Why does Warner need to gather the revenue from these music videos? It is not costing them anything to have these videos on You-Tube. It is not as if someone has stolen thousands of DVDs from Warner. The videos on You-Tube are digital copies. The only company wearing any cost in this situation is You-Tube--hence Google. We could respond to this point by suggesting that although Warner has not had to spend any money on the copying and hosting of these videos, the original artists need to be paid for their work. The argument is similar to all music piracy arguments. The idea is that composers and performers need to be paid for their work, otherwise they will be unable to afford to continue producing music. This is a valid point, but we can respond by stating that the original performers have, in fact, already been paid. They were paid when the music was originally released. Their payment came from the sales of CDs and music videos. Indeed, they probably earned vastly more than they would have if they were simply paid an hourly rate for the production of the music. So why do they need to continue to earn money from it? Does it make sense that Paul McCartney still gets paid every time a radio station plays “Hard Day’s Night”? The song probably only took a couple of hours to write, and it probably took less than a

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day to record in a studio back in the 1960s. Why should he continue to be paid for this song 40 or 50 years after it was originally produced? The concept of copyright and royalty payments in music has a long history. It stems back to the late eighteenth century. Before this time, composers were generally employed by aristocrats, churches, and royalty. They earned a yearly income in return for which they produced new music. As times changed, and composers started to write for the free-market, they faced a problem. If they wrote a successful piece of music, which was then copied to be performed by other people, they would not gain from its success. Sure, they would have earned money from the composition, but if it were too successful, people would continue to use it in concerts and there would be no immediate need for new compositions. You can see that it would be in the composer’s best interest to write mediocre work, which would only be performed a few times before people demanded something new. If the work was too good, then it would continue to be performed, thus lowering the demand for new work. The concepts of copyright and royalty payments were developed in response to these issues. The new laws gave composers an incentive to produce high quality work. The higher the quality, the higher the demand, which translated to an ongoing revenue stream. Early copyright laws protected composers but not performers. Before recorded music, this was obviously not an issue. Before phonograph recordings became commonplace in the early twentieth century, performers were paid every time they played for an audience (live or on radio). But when people started to make recordings of performances there was naturally a high level of concern within the musical community. From the point of view of the musicians, it seemed that their future was in jeopardy. After all, if people could play recordings of music over and over, then why would they need to pay a band to perform the music? The situation was further exasperated when radio broadcasters began to play recordings rather than employ live bands. To solve the problem, various unions and collectives were formed to protect the rights

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of the musicians and composers. The current situation sees musicians being paid each time a copy of their work is sold or broadcast. Its as if the performers are being paid “in absentia” for their music--as if they are being paid to perform each time the piece is paid. The reasoning seems fair when we consider the needs of the musicians. But now that large publishing corporations are involved, questions need to be asked about the wisdom of this old model. Would we expect Leonado Davinci to be paid every-time someone makes a print of the Mona Lisa? Would we expect Leonado Davinci to be paid every-time someone views a copy of his Mona Lisa? Would we expect the art gallery that originally displayed the Mona Lisa to be paid every-time someone views a print of the original? The idea seems absurd, and yet this is how we are expected to understand the music industry. Of course, it is true that the museum containing the original Mona Lisa charges admission. In effect, people are paying to view the original artwork. It is also true that the original Mona Lisa carries considerable value. But this is because it is a one-of-a-kind artwork. Its the rarity that gives it the value. It is obviously not worth any more than a few dollars in terms of materials and time taken to produce, but since there is only one, its value has become inflated. The analogous situation in the music industry would be watching a live performance by the original musicians, rather than a video-recorded performance. It is perfectly reasonable to expect people to pay to see a live performance of a musical work. The situation is similar to viewing the original Mona Lisa. It is a rarity, since the musicians are original and a one-of-kind combination. Furthermore, the musicians are actually on stage performing, and they need to be paid for their time. But in the case of recorded music, I see no reason why the musicians and publisher need to be paid each time a copy is made--so long as they have received payment for their time and efforts when the music was originally produced.

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Who Owns Music? There is a further problem with the notion of paying every-time a musical work is heard or copied. This is a Philosophical problem, which relates to the fundamental question Who Owns Music? Our commonsense answer would be that the music is owned by the person who created it. But when we look at the issue closely, this answer seems less satisfactory. Surely music, like all human artifacts, belongs to all of humanity. Consider, for example, science. No-one owns a scientific theory. Sure, a theorist will usually attach their name to a theory, but they do not own it. Scientists do not charge money every-time their theory is used or referenced in scientific papers. The same is true of mathematical algorithms. No-one can own an algorithm. This is because algorithms are discoveries. Mathematics is built into the fabric of the universe, so cannot be owned. We can extend this idea to the creation of computer programs. A program is a vast collection of algorithms. The end behavior of the program may be considered to be greater than the sum of its parts, however it is reducible to algorithms. Computational algorithms are mathematical algorithms, and so they cannot be owned. Consider a basic algorithm: total=x1+x2+x3...+xn (where n is the final number in the series). This simple computational algorithm calculates the total of a string of numbers. It is simple math and was not invented. Rather, it was figured out, much like 1+1=2 was figured out. It would not make sense to suggest that someone invented 1+1=2. It would make even less sense to propose that 1+1=2 can be owned. Mathematic functions are fundamental truths of the universe. I believe the same is true of music. Music is not invented, it is discovered. A composition is nothing more than an elaborate formulation of harmonics, pitch changes, and tempo variances, which can be described by a finite collection of rules. Composers learn the rules and discover new music based upon those rules. When we analyze music, we can uncover the rules that

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composers have used to construct their pieces. Most musical pieces are simply built around new combinations of what already exists, and these new combinations are formed according to the narrow set of rules that are already in place. This is especially true of jazz and the blues. Consider how many tunes use the traditional blues bass-line. Music is algorithmic, and is therefore built into the universe. For this reason it cannot be owned.

The Future There is a well entrenched tradition in music, which sees publishers, composers, and performers earning a percentage of sales. There was a time during which publishers had to outlay capital to finance the production of each sale “unit”. This was in the days of Vinyl records, Tape recordings, and Compact Discs. During those days it was entirely reasonable for the publisher to gather revenue from sales. This was to cover its ongoing production expenses. But times have changed. Music is now copied at no cost and publishing companies have no ongoing expense after the music is released. Furthermore, composers and performers who have earned their money during the production of the music do not require any additional payments. I believe the time has come for the creation of a new revenue model for music. It is reasonable for composers and musicians to earn money for the work they do. It is also reasonable for publishers to recoup their expenses and make profit for publishing music, but once it is out in the public, people should be able to do whatever they want with the music. People should be free to copy and distribute the music as they wish--with the proviso that they include the name of the composer and performers with the copy. Music is an algorithm, which means it is discovered rather than invented. Therefore it cannot be owned by anyone. Musicians, like scientists and computer programmers, should be paid for their discoveries, but their work belongs to us all. © Brent Silby 2008

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Bibliography Brewster, Bill and Broughton, Frank. (2000). Last Night a DJ Saved My Life: The History of the Disc Jockey. New York: Grove Press. Melograni, Piero. (2007). Wolfgang Amadeus Mozart: A Biography. Chicago: The University of Chicago Press. Translated by Cochrane, Lydia G.