"Silly Euphemism" or Stubborn Fact

An article by noted author/blogger Cory Doctorow appeared in The Guardian recently. It concerned the "silly euphemism" of the term "intellectual property".

"...the phrase "intellectual property" is, at root, a dangerous euphemism that leads us to all sorts of faulty reasoning about knowledge....Fundamentally, the stuff we call "intellectual property" is just knowledge - ideas, words, tunes, blueprints, identifiers, secrets, databases. "

Speaking of faulty reasoning, this generalization is about as dangerous as it gets. There are actually at least two types of knowledge : factual knowledge (that which can be discerned by everyone using sensual observation or experimentation, such as the "knowledge" that the world is round), and creative knowledge ("knowing" works of art, literature, music, etc. that have been brought into the world through the creative work of one or more minds in collaboration). Words, identifiers, and databases are not the same thing as ideas, poems, tunes, novels, paintings. Factual knowledge can not and should not be owned. It would be ludicrous to say that one "owns" the fact that 2 +2 = 4. However, it's perfectly reasonable to say that one owns a song or a novel one has created, and calling this creation "intellectual property" is not only appropriate but accurate.

Mr. Doctorow goes on to say that intellectual property is not "inherently exclusive" whereas most "property", such as a house, can be made exclusive:

"If you trespass on my flat, I can throw you out (exclude you from my home). If you steal my car, I can take it back (exclude you from my car). But once you know my song, once you read my book, once you see my movie, it leaves my control. Short of a round of electroconvulsive therapy, I can't get you to un-know the sentences you've just read here."

While this may be true, it isn't a sound argument against using the term "intellectual property" to categorize works of creativity. Just because a work of fiction or a song can't be "un-known" doesn't mean a transcription of it can't be made legally exclusive. Knowing my song in your head isn't the same thing as owning a file or recording of my song. The "knowledge"of my song isn't what is being protected, but rather the licensed transcription (a CD recording, an mp3 file, a piece of sheet music, etc.).

Similarly, The Louvre can ban photography of it's famous paintings such as the Mona Lisa, but they can't prohibit anyone from memorizing the image, or even copying an imitation of it it by hand. And no one would argue that the original painting isn't property just because it can be viewed, memorized, or copied (I don't mean forgery that you later try to pass off as the original, just a personal copy).

I agree with Mr. Doctorow that we haven't nuanced the intellectual property language enough. There certainly should be uses of creative knowledge that require no license or payment from the user. For example, anyone should be allowed to sing my song from memory before their own audience without paying for that right. This is a transient experience, not a permanent transcription. It's the same thing as looking at the Mona Lisa, then leaving the museum with only the memory of the image-- something that can't be "un-known".

However, when it comes to the exchange of media containing the original content (the file, the CD, the photograph, the DVD, etc.) we should continue to protect the rights of creators and we should continue to call the contents of the medium "intellectual property" rather than invent further confusion.


copyright 2008 craig bickhardt

Who's Your Daddy And What Does He Do?

David M. Israelite, President & CEO of the National Music Publishers' Association (NMPA) has issued a statement to the songwriters and publishers of America regarding the Copyright Review Board's hearing to determine mechanical royalty rates for Internet and traditional licenses of music. The participants are the CRB, the NMPA, the RIAA, and the DiMA. Both the RIAA and DiMA have proposed significant reductions in mechanical royalty rates that would be disastrous for songwriters and music publishers. Isrealite says :

"To give you an example of what is at stake, the current rate for physical phono-records is 9.1 cents. The NMPA is proposing an increase to 12.5 cents per song. The RIAA, however, has proposed slashing the rate to approximately 6 cents a song - a cut of more than one-third the current rate!For permanent digital downloads, NMPA is proposing a rate of 15 cents per track because the costs involved are much less than for physical products. The RIAA has proposed the outrageous rate of approximately 5 - 5.5 cents per track, and DiMA is proposing even less."

Ok, let's dig into this alphabet soup for a moment, shall we? What is the CRB? Who are the RIAA ? Who are the DiMA, the NMPA, and the MPA? I don't mean "what do the initials stand for" I mean what do the organizations stand for and who are the real advocates for songwriters?

The Copyright Review Board (CRB).

"On January 11, 2006, Librarian of Congress Dr. James H. Billington appointed three copyright royalty judges... who oversee the copyright law’s statutory licenses, which permit qualified parties to use multiple copyrighted works without obtaining separate licenses from each copyright owner.

Among other duties, the Judges are responsible for determining and adjusting the rates and terms of the statutory licenses and determining the distribution of royalties from the statutory license royalty pools that the Library of Congress administers.

The current judges are : * William J. Roberts (two-year term) * James Scott Sledge, Chief Judge (six-year term) * Stanley C. Wisniewski (four-year term)"

Constitutionally speaking, this triumvirate should favor protection for copyright owners, who are often songwriters, and they often do. But... sometimes the actual copyright owner is a Publisher or a Record Company, and sometimes there are conflicts between these groups when it comes to rights.

So, the advocate for the Publishers is the National Music Publishers' Association (NMPA).

From the NMPA Mission Statement :

"The National Music Publishers’ Association is the largest U.S. music publishing trade association with over 700 members. Its mission is to protect, promote, and advance the interests of music’s creators. The NMPA is the voice of both small and large music publishers, the leading advocate for publishers and their songwriter partners in the nation’s capital and in every area where publishers do business."

"The interests of music’s creators"...now surely this organization is your daddy right? Not so fast.

Back in December 2005, the NMPA and MPA (Music Publishers' Association) announced they would be targeting websites that traded user-generated guitar chords and tablatures. One copy of a letter sent by a law firm on behalf of the NMPA/MPA was transcribed and posted on Guitar Tabs.com:

"The versions of these publishers' musical works that you post on your website are not exempt under copyright law. In fact, U.S. copyright law specifically provides that the right to make and distribute arrangements, adaptations, abridgements, or transcriptions of copyrighted musical works, including lyrics, belongs exclusively to the copyright owner of that work."

Says Michael Carroll, Associate Law Professor at Villanova University :

"Rather than work with this online community that has formed around the music, by perhaps adopting an advertising-based and value-added approach, the publishers want to disband it and preserve a sales model that would force (consumers) into a passive consumption role."

Consequently the site was shut down.

But are there benefits to the copyright owners who allow their lyrics to be posted for free?

Yes. How many times have you heard part of a song and Googled a phrase or two, and found the lyrics, title and artist listed on a lyric site? And if it was an obscure song it was probably not posted on a sanctioned lyric site. But when you found what you were looking for maybe you went to itunes and bought the song. This scenario happens hundreds if not thousands of times per day.

Like many songwriters I want people to know the words to my songs so they can sing them. When I get requests for lyrics I just email them to people. I don't ask for a dollar. According to my publisher I'm violating his rights.

Similar conflicts of interest arise when published songwriters try to promote their own music with MP3s and videos on the Internet. Recently I did several videos for a company called Blue Comet Cafe.com. The website streams videos as a showcase vehicle for singer-songwriters. The budget was very tight, and I requested a gratis sync license from my publishers. Universal and BMG consented. EMI wanted a hefty $250 per song, which was impossible. Keep in mind, I'm trying to promote songs I wrote that EMI owns administration and publishing rights to. My own publisher, a member of the NMPA, prevented me from promoting my own songs. Ludicrous.

And let's be honest, many songwriters have to audit publishers to get all of their royalties. My catalogs have been bought and sold so many times I'm not even sure who owns them anymore. But, in this particular battle over the future of Mechanical Royalties, ok, we songwriters are in bed with you, NMPA. But we don't trust you, so don't take us for granted.

The MPA (Music Publisher's Association) is a similar organization.

"Founded in 1895, the Music Publishers Association is the oldest music trade organization in the United States, fostering communication among publishers, dealers, music educators, and all ultimate users of music"

Note the emphasis is "users" and "publishers". If you don't publish your own songs, you may at times run into conflicts with this group.

The DiMA (Digital Media Association)

Here is how their website defines the organization :

"DiMA was founded in 1998 by seven leading webcentric companies that agreed on a common principle - that consumers' desire to enjoy digital entertainment should not be hampered by outdated laws, regulations and business models. At the time there were no trade associations representing companies whose core businesses depended on the distribution and streaming of digital entertainment content. The founding companies believed that webcasters, technology companies and online music and video retailers needed a stable legal environment in which to build ideas into industries, and inventions into profits."

Clearly not your Daddy. In fact, as David M. Israelite of the NMPA cites :

"For interactive streaming services, which some analysts believe will be the future of the music industry, NMPA is proposing a rate of the greater of 12.5% of revenue, 27.5% of content costs, or a micro-penny calculation based on usage. The RIAA actually proposed that songwriters and music publishers should get the equivalent of .58% of revenue. This isn't a typo - less than 1%. And DiMA is taking the shocking and offensive position that songwriters' and music publishers' mechanical rights should be zero, because DiMA does not believe we have any such rights!"

This organization exists purely for the purpose of compromising copyright income from the Internet. They want it cheap, they want it all, and songwriters can eat dirt.

The RIAA (Record Industry Association of America)

From their "Who We Are" web page :

"The Recording Industry Association of America (RIAA) is the trade group that represents the U.S. recording industry. Its mission is to foster a business and legal climate that supports and promotes our members' creative and financial vitality. Its members are the record companies that comprise the most vibrant national music industry in the world. RIAA members create, manufacture and/or distribute approximately 90% of all legitimate sound recordings produced and sold in the United States.

In support of this mission, the RIAA works to protect intellectual property rights worldwide and the First Amendment rights of artists; conducts consumer, industry and technical research; and monitors and reviews state and federal laws, regulations and policies. "

Hmmm... as far as I can tell, the word "songwriter" doesn't even appear anywhere on the website. You'd think they made records out of thin air.

This organization never was and never will be serving the interests of songwriters. Stephen Foster earned $.015 (1.5 cents) for each copy of sheet music he sold. Since there were no records, we can only compare apples to crab apples here. Up until recently (during my career) the mechanical royalty rate was $.0375 per record sold. That's little more than a $.02 earnings increase in a over a hundred years, a period which has seen the price of sheet music go from $.25 to $3.95, or roughly a 1600% increase. No doubt, if there had been records in the mid-1800s, there would've been a similar price hike. We've managed to get the rate up to $.091 and now the RIAA wants to slash it back to 1980s rates? Hey, RIAA, bite me.

Support the NSAI.

They may not be perfect, but they're still the best allies we've got.