Copyright Law

Something that I've been thinking about lately is the nature of the music licensing bodies in Ireland. I've talked before about IMRO, and no, I am still not impressed by their efforts to extract license fees from hobbyist music blogs. Promotion of up and coming artists is important, and those blogs are only going to become more prevalent.

Anyway. I've been pondering something tangentally related.

IMRO are licensed to collect fees from venues like shops, restaurants, clubs. The PPI collect as well, for performing rights. They collect regardless of whether the venue in question actually plays any of their music; their attitude is such that they assume that the musicians in the venues will, without a shadow of a doubt, eventually play something that they have the rights to.

Now, this worries me.

Let's say a restaurant doesn't want to pay the fees, and decides to play only non-IMRO, non-
PPI music. Such music does exist - Creative Commons music, perhaps? Jonathan Coulton releases all his music as CC-Attribution-Non-commercial; it wouldn't be much of a stretch to make a deal with him, or artists like him, to use their music.

Here's the thing: his songs are specifically registered to him. He owns the copyright and he licenses them as he sees fit. "Copyright is the set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work..." so sayeth Wikipedia, which seems quite straightforward. Copyright lets the creator profit from their work in exchange for sharing that work with the world. The keyword there is profit, of course.

If you own the copyright on a work, no one else has the right to profit from that work. That would be in breach of the most basic elements of copyright law. So, consider for a second what happens in this scenario:

Restaurant contacts local musician and does a deal, such that the musician provides or performs their own original work (or their own original arrangements of public domain works) to the restaurant in exchange for a set fee, which is presumeably lower than the licensing bodies' fees. Restaurant begins to use this background music normally. Both parties profit in that the venue gets music, and the musician gets promotion plus money; very straightforward, as the musician owns the songwriting and performing rights, and may profit from them in whatever way they see fit.

Enter the IMRO, as they like to do, and they demand licensing fees from the restaurant, because the venue is playing music. In short, they demand payment for the use of music to which they do not own ANY RIGHTS.

See the problem there? See what is just a little bit bothersome? The licensing bodies are essentially asking for money on the offchance a venue uses their music, even when the venue specifically restricts itself to music they don't cover. If Jonathan Coulton owns the copyright on a work, and owns the exclusive right to profit from it... what exactly happens if the IMRO profits from it?

Breach of copyright law, perhaps?

This cannot end well

In the aftermath of the High Court decision regarding the three strikes malarky with Eircom, it seems that the licensing authorities in Ireland have decided to start cracking down on all kinds of content both online and offline.

Two stories in particular have crossed my path. The Irish Music Rights Organisation (IMRO) have sent out notices to a number of large, non-profit Irish music blogs that they must buy a license in order to offer MP3s to their readers - files, by the way, that have been sent to them gratis by labels and bands for promotional purposes. The reasoning is thus - these bands and labels have signed up with the IMRO and granted them the exclusive rights to collect songwriting royalties on their behalf. If I understand this corrently, even if they want to give away their music, they can't. The agreement they signed does not allow it.

Dare I say that this is all kinds of stupid? The blogs are doing free promotion, and getting people talking about music. The vast majority do it for the love of music, not because they want to get paid. They make no money. If this does occur, it can only put a serious dent in the promotion and discussion of Irish artists online. Less promotion = less people hearing about music = less sales.

The second story is about the licensing of cinemas in Ireland. The IMRO is in talks to increase the rates that they charge cinemas across the country - 1% of their gross box-office takings, regardless of the size of the cinema. At the moment, the rates vary depending on the size. That's not a cut of the profits; it's a cut of all money they take in, and 1% is a lot when you're already on slim margins. This is apparently because “we have an obligation to treat all cinema operators in a fair and consistent manner.”

I'm not sure what to make of it. The whole Irish economy is being slammed right now, and all this seems to be doing is squeezing businesses even further. According to the article, they want to backdate payments for the last five years - that can easily put the cinemas who are just holding on right now out of business entirely.

This just cannot end well. I can't imagine many artists who are signed up to the IMRO would be all that happy about these greedy, strong-arm tactics. With the ability of the Internet to provide a promotional platform for bands, the question may indeed become whether an artist would want to be signed up to the IMRO anyway. Make no mistake about this; there's a market there for bands who choose to retain all rights and completely avoid the IMRO, IRMA, PPI and others. Take a song, for which you own the written copyright because you wrote it. Record it yourself, and you have the recording copyright. Sell the song to a business under your own commercial license, granting them the right to play it in their shop for however long you both agree on - forever, maybe? - for a small, set payment. You get a little bit of money, and free promotion of your song in that shop. They get a license to play music that doesn't bankrupt them.

Can you imagine if a label decided to do this? I could easily envision one going into a shop and setting up their sound system as a direct stream from the label's servers which contains all their bands' songs, and the music is delivered as a service which costs a small monthly fee. The shop would get affordable music, and the label would be able to control their marketing and promotion. And that's to say nothing of the feedback you could get; statistics on the most popular songs, sales figure comparisons, etc. What if there was a public computer in the store where customers could register their interest in the music being played, or show their interest in a particular song? The possibilities are endless!

This does assume, though, that the label hasn't already signed up with any of the licensing authorities.

I can't be the only person who can come up with a workable business plan that bypasses the IMRO. So... I wonder are they really working in the interests of the musicians, or are they only interested in their own revenue streams?

'Three strikes and you're out' is not a game

This isn't baseball, and I wonder if perhaps the Irish High Court should really take note of that.

Three strikes laws are nothing new. They are the type of law, however the wording actually states, that disconnects a person's Internet connection after they have been accused of a third copyright infringement. They are law, or are in the process of becoming law, in Sweden, the UK, and France.

They are also a waste of time and money, a threat to human rights, and a threat to the livelihood of anyone involved in the creative arts.

In January 2009, Eircom signed a deal with the major music labels to disconnect persistant filesharers. This is not a law, per se, but a simple agreement between them and the IRMA - if they receive notice of evidence of filesharing against a particular connection three times, that connection is cut off. There was a High Court challenge regarding the legal status of an IP address as personal data, but that has now been resolved, and the agreement can go into full force. This is even worse than a law - there is no oversight, no accountability. And with Eircom signing up to this, the IRMA will have the leverage to bully other ISPs into accepting the same deal, or face being sued.

So. Let's hypothesise. Eircom receives a notice that a particular IP address has downloaded an infringing file. They duly send out the notice to the mailing address associated with that IP - they have no way of knowing whether the notice is accurate or not, and little reason to care.

But is that evidence accurate? It may not be, if it's similar to the system used in the UK by ACS:Law. The Internet Service Providers Association in the UK was not convinced. See BeingThreatened for more information on this. The content in question also may not be infringing - in Viacom's lawsuit against Youtube, for example, there were a hundred clips listed as infringing when Viacom had uploaded them itself! Fair use is not mentioned, so background music in a home video you share with your relatives abroad may get you disconnected (legally, it's still infringing material) - and we have no assurances as yet that the IRMA will not pursue people in that fashion. This, by the way, is the same organisation that claimed that people who copied music to their iPods from their CD collection were breaking the law.

Does the evidence actually point to your computer? It may not. The IP address points to your connection; your gateway to the Internet, as it were. Several computers in one house all use the same gateway. They have no way of telling which computer connected to that gateway actually did the infringing.

What if the gateway belongs to a business with a dozen employees? Maybe a rented accomodation, where students are coming and going all the time? A school? How do you tell who actually did it, and who is just a bystander? What if the culprit hacked into the connection, as many savvy users can, without the owner's knowledge - through a wireless router, for example? The IRMA apparently doesn't care, and Eircom stands to lose more through getting sued than it does by losing one customer's business.

But nothing can change the fact that this is punishment on accusation; the customer is guilty until proven innocent. It's like getting arrested for being nearby when a crime occurs, and the actual criminal is let free to break the law again. And Eircom will likely lose many customers as they move to other ISPs, but that is a stalling tactic at best if the IRMA manage to foist their agreement on all Irish ISPs.

I did state, though, that this is a waste of time and money. Allow me to expand on that.

The entire point of this agreement is to discourage copyright infringement, and encourage the legal sale of creative works. I'm sure it looked good on paper, but in practice, it simply does not work. Sweden saw a drop in filesharing traffic after implementing the IPRED law, but the levels simply bounced back and even increased. People moved to streaming sites, or bought VPNs that encrypted their activity and essentially let them fileshare with impunity. And the question of whether IPRED actually increased legal sales is up for debate; an increase was seen, but was that a result of the law, or of better availability of legal music through sites such as Spotify? Correlation does not equal causation. Attitudes to filesharing remained largely the same, and to date there have still been no IPRED convictions.

The lesson to be learned here is, as I've said before, that people will get the content they want in the manner they want, and laws that are easily circumvented by the technologically astute are hardly going to stop them. The time and money spent by the IRMA and Eircom on this is simply a waste - it will not even slow down piracy, if the figures from Sweden are anything to go by, and it is certainly not guaranteed to catch the actual pirates.

That the three strikes laws are a threat to human rights is quite clear; they are a threat to free speech, and the free access of individuals to information. Internet access is considered so important by the EU that it adopted an Internet freedom provision in the Telecoms Package last year, in which "the right to an effective and timely judicial review shall be guaranteed" in the case of disconnection because of copyright infringement. Alas, this provision only applies to states, not private ISPs... Technically, what Eircom and the IRMA are doing is legal, but that doesn't make it right.

But these laws are also a threat to people involved in the creative arts. I think I should know about this, as I am a person involved in the creative arts. The reason is simply this: the law disconnects people from the Internet. It cuts them off from the greatest communication medium the world has ever seen.

Without access, they cannot talk about my books on their blog. They cannot tweet about me, the author. They cannot buy a paper copy of my book as a present for someone. They cannot discuss my books with other fans. They cannot buy merchandise from me. They cannot find out about book signings.

They certainly can't buy my damn ebook.

The greatest challenge facing me, as an aspiring author, is obscurity. It's the same challenge facing all but the biggest names in music, books, and movies. And it makes me goddamn furious that the IRMA and licensing authorities like them feel that they can cut me off from my fans because of filesharing. Piracy isn't right, and I know I'd rather not see my books pirated, but this is not the answer! Removing one major avenue for people to consume and purchase media will not encourage them to consume and purchase elsewhere; in fact, if they're disconnected because they have an infringing copy of my work, it could damage my reputation as an author because they are likely to blame me personally!

I do not want my name connected with such idiocy, especially when there is money to be made by creative individuals who understand the power of the Internet. The Irish High Court certainly don't have a clue, judging by the comments of Mr. Justice Charleton. They should have done even the most basic research on other implementations of three strikes, and how they affected filesharing. They might have noticed how an IP address may not correspond to the infringer, and how there is enormous scope for innocent people to be disconnected. They might have considered other effects of disconnection such as inability to pay bills online, inability to complete coursework, inability to do business, inability to spend money on legitimate sites.

The fact that they seem to have ignored all this suggests to me that they are not treating this issue with the respect it deserves. They are not acting in the best interests of Irish citizens.

'Three strikes and you're out' is not a game.