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Who Really Owns Music?

Brent Silby 1

Who Really Owns Music?

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

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

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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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.