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by dijksterhuis·7y ago·view on hn ↗
> On the other hand, society really should be looking at non-exclusive ways to incentivize creation. Maybe a real copyright could be part of the mix too, but the current model rewards trying to own shared history that is largely valuable because it is shared and previously experienced, and not for the artistic contribution itself.

Woah, hang on there buddy. Without the artistic contribution you wouldn’t have the shared experience or history.

So which is more valuable? The chicken or the egg? (Hint: it’s the egg).

> I think a system with a much shorter exlusivity periode - more like 1 year - and then a longer period of e.g. mandatory fixed-price licensing (pick a price per human end user, but you cannot say no to remixes or alter the price for anyone); or citation-based subsidy, or mandatory auctioning (e.g. the copyright owner sets a price, pays X% of that price as a tax, but must sell to the highest bidder over that price, potentially annually at increasing scale?)

Music is not the same as online adverts, so I’m not entirely sure why you think a similar model should be applied.

Also, who defines what constitutes as a “remix”? Does me changing one second of audio count as a remix? I’ve altered the work, I’ve changed it. But it’s 99% the same. Is that a remix or copyright infringement?

Also, this type of model assumes EVERYTHING can be measured online. What about vinyl record sales? Cassette sales? How do you get every shop across the entire world to adhere to your model for physical products.

Also, what about live gigs? How do you license for x number of end listeners if you can’t count how many end listeners there are? And before you mention ticket sales, what about cover bands that play in pubs and bars where there are no ticket sales?

> Don't forget that the aim is to help society, not to reward artists.

Errrrrrr. What? No. Copyright law is designed to protect the rightsholders first of all.

If I don’t want someone remixing my track, why should society get a say above what I think? It’s my work. Why do they get to choose?

> I get that 20 years would be nice for artists, but I doubt that "just" 5 would be too little to incentivize creation - let's be honest, humans have been creative since well before the dawn of copyright. Again, we should be looking at incentives with less harmful downsides. It's not just too long; it's incentivizing the wrong stuff;

I’ve been making music for 10 years. In that time I’ve worked jobs to pay the bills and buy music gear. I’ve spent much of my free time on making music.

I’ve invested my money and my time over the last 10 years. If I were to “make it big” tomorrow, do you think I’d be happy about half of my investment being thrown to the wolves?

Music (and art generally) is not a linear earning process. The majority of people don’t suddenly become big overnight. There’s years (sometimes decades in the case of Gigi Masin) of toil and hardship until you finally get to the point where you actually make some money.

2 comments
> I’ve been making music for 10 years.

Then I wonder what you think of Kirby Ferguson's video series, Everything Is a Remix (https://vimeo.com/139094998).

WRT artists and creativity...

It's ridiculously reductive and misses swathes of nuance. Apparently anyone who uses an A minor chord is derivative by that logic. Anyone using an ABCDCAECCF song structure is derivative. Anyone using drums is derivative!

Using its logic, one could argue that your own comment is derivative - it uses the English language, you used the HN comments system rather than making your own, you included a vimeo link like so many other people on HN, you used the block quote symbol instead of coming up with your own.

When I record noise in a coffee shop, I'm using a technique that many other people have used, yes. However, I'm the only one sitting in that exact position, using that exact microphone, with those exact people around me talking about those specific things at that specific moment in time. So the sound I record is not derivative. It's special. It's unique. No-one else has recorded that sound. No-one else accidentally spilled his coffee halfway through the recording and mumbled "ah sh" in my voice.

If you want to be black and white, yes all art is derivative. No-one has ever created anything purely original ever. In the whole world and the entirety of time. But that misses the point. My personality, wide ranging influences, strange thoughts, ideas and mistakes are in that recording.

Also, good artists copy, great artists steal. Every time I show new tracks to my friends I try to ask who they think the influences were. It's a really fun game because 90% of the time it shows me more about their taste in music than mine.

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WRT Copyright law.

I can only speak for the UK here, but we are one of the biggest exporters of music in the world. We export more of our music than most other nations. That's not evidence of a system that is stifling creativity. Far from it!

PRS For Music pays out around £700 million to UK rights holders annually. And that's just one part of the music industry!

This stuff about exclusive licenses also isn't really a problem. All those Beastie Boys, Eminem and Will Smith tracks will have cleared the Led Zeppelin sample (mentioned in Part 1), negotiating a share of the royalty with the original rightsholders. I know this because I used to look at these royalty shares every day in PRS systems (used to work there).

Sure, if you want to use a sample from a popular song in your work, you have to do a bit of extra work and maybe sacrifice a bit of cash. Hell, maybe you can't actually clear it and need to replace that sample.

But you're trying to use someone else's work directly, and without modification, so they should be fairly paid for that. You could have created your own element to fit in that space, but you didn't.

Sampling actually has an interesting loophole BTW. If the sample is modified beyond recognition, it is considered a new work and doesn't need to be cleared/attributed.

Finally, just for the sake of clarity, the stuff he was talking about wrt Led Zeppelin stealing from other artists actually sits in the area known as Arrangements. These are a whole weird grey area, which is why people go through through lengthy court battles.

> Woah, hang on there buddy. Without the artistic contribution you wouldn’t have the shared experience or history.

That's just nonsense. Sure you would still have shared experience and history: not all experiences are manufactured, and not all manufactured experiences are owned, and not all art is made for profit.

Even without any copyright at all and without any incentive to produce art at all, people would still produce art, because it's fun, and perhaps for other reasons. By number, most musicians are hobbyists and never get paid a dime; lots of people make and play music just as social thing and as part of growing up. The idea that music needs to be a job, and beyond that a job beyond the actual performing art itself is clearly incorrect: evidence: every single human culture in history, which have all made art and music, well before copyright was ever a thing. Even today, despite the huge hurdle that copyright poses, communites create pretty impressive stuff even though their members never even consider the fact that some of their contributions are potentially copyrightable, and the fact that it's hopeless to figure out who owns what in a process like that.

If you think that the only shared experiences worth having are those intentionally created by people being paid, you have a really, really distorted view of humanity. Have you never just had fun with a bunch of friends or family, and created something in the process? Seriously??

> > Don't forget that the aim is to help society, not to reward artists.

> Errrrrrr. What? No. Copyright law is designed to protect the rightsholders first of all.

Well, this depends at least slightly on where you're from. In the US, the constitution explicitly states that congress may enact a limited duration of exclusivity for the purpose not of protecting rightsholders, but to promote "science and useful arts". It would likely be unconstitutional for congress to limit transmission of ideas without constitutional amendment for the purpose of protection of rightsholders, but IANAL. In any case this wasn't articulated as clearly in earlier texts in e.g. england, but I'm going to go out on a limb and suggest that it likely played a part there too; if the aim were merely to keep the destitute off the streets, why single out authors like that? Because creation is valuable. Protecting rightsholders is a means to an end; not the actual aim of copyright. You might even say it's a cost, not a benefit: you're taking people's rights away, and there better be a good reason for that.

> Also, this type of model assumes EVERYTHING can be measured online.

I intentionally mentioned a bunch of different models, some of which do not assume that, e.g. the annual auction system. I'm positive thee are dozens of other (better) systems too, I just thought of those on a whim: the point isn't to promote any specific alternative but to emphasize that there are alternatives and they're not even hard to think of. But even the citation system does not require everything to be online, simply to be accounted for. You buy the vinyl you're worried about today, in most places you pay sales tax and thus in some sense formalize the sale. Formalizing the usage is conceivable. Would that be perfect? No. But copyright only "works" when nothing can be copied without permission, yet, that's quite possible nowaways. The feasibility of copyright is almost certainly one of the worst of all of these approaches, particularly because copyright introduces the dichotomy of consumer and producer, and puts them in opposition. And that makes it attractive to cheat. Also, we do live in a world with ever more pervasive automation. It would be inefficient not to leverage that where it's useful to do so.

As to your question on what's a remix: either define it, or consider all usages to be derived works needing a mandatory license. That's only a problem with copyright because copyrightholders have users over a barrel; with mandatory licensing and fixed prices a remixer would know what they're getting into beforehand (and might choose to use older, cheaper samples, or use less of the sample or whatever). But what's not going to happen is that it turns into the quagmire is is now, because there's no exclusivity. It's even conceivable you could use the notion of entropy modern signal prcessing in dealing with what's a remix; that mathematical tool simply didn't exist back then! (Again, the options are legion, which is the point...)

1a) My point was that without the creation (i.e. the artistic contribution, people getting together and jamming, me in my studio etc.) then the shared experiences wouldn't exist because nothing would have been created to be shared.

That was where it seemed your original comment was heading towards. That the creation didn't matter. I think we agree here but we seem to have missed each other's points.

1b) Hold on, are you arguing that copyright shouldn't exist because music/art has always existed in some form or another and therefore it doesn't deserve to be protected?

1c) Actually, copyright helps to boost creativity in some cases. See point (2b).

2a) UK copyright law actually started as a way of enforcing censorship. Mind you, this was hundreds of years ago under the Statute of Anne. These days, however, its job is to protect the rights and welfare of creators. Because our society places an inherent value on the work musicians do - whether they be pro or hobbyist.

2b) Copyright means that someone can't just go onto soundcloud, copy one of my tracks and call it their own. And a damn great thing that is. They'd be ripping off my work. Why would I bother creating anymore music to share with people if all that will happen is that is gets ripped off every time?

Yeah, I put the music out there for people to enjoy, but if someone else is going out and claim it as theirs and get some big concerts off the back of it, why would I bother? Humans are not altruistic beings. We are inherently selfish. Laws help keep us in line. That's the point of laws!

So, in that way, copyright actually helps boost creativity, whilst balancing the rights of the consumers and the rights holders.

3) You've taken the existing models used by collection societies and wrapped them up as if they've new. Also, its not clear if you're talking about just trying to use samples, or copyright as a whole. I'm going with the latter, as you mention remixes towards the end of your post, but if it's the former feel free to call me out and i can come back with other stuff then.

Let's go through these ideas in order... Using Average Joe, the dope smoking guitarist from The Average Band, as an example musician.

3a) mandatory fixed-price licensing (pick a price per human end user, but you cannot say no to remixes or alter the price for anyone);

PRS requires people who use music to have a license. The BBC pays a license fee. Pubs pay a license fee. Radio stations pay a license fee.

The price per end-user fluctuates because the number of end-listeners fluctuates over the course of a year. Also, the majority of revenue domains (Live especially) can't estimate how many end-listeners were actually listening to each piece of music. This is why blanket deals happen. The data just doesn't exist.

And before you start thinking "YouTube must surely be able to provide that data", their data was some of the most useless stuff we had to deal with back on the 2014 license. Seriously, it was atrocious.

All your solution does is put the onus of understanding the licenses on the rights holders, like Average Joe. Average Joe sometimes forgets what an A Minor chord is, let alone the choices between legal frameworks.

3b) citation-based subsidy

PRS receives usage data from licensees and then pays out to rights holders based on that usage. So nothing new here.

3c) mandatory auctioning (e.g. the copyright owner sets a price, pays X% of that price as a tax, but must sell to the highest bidder over that price, potentially annually at increasing scale?)

So only one entity ever can have access to The Average Band's brilliant new album: The Average Album?

3d) I'm positive thee are dozens of other (better) systems too, I just thought of those on a whim

If you've thought of these on a whim then I can almost guarantee that they will not work. In all my time at PRS, the "blue sky thinking" ideas were always the ones that resulted in members and/or Joe public getting angry at us over the phone.

There is not one single specific model that works best. There are different models because they fit the purposes for which the music is used best. The system is complicated and there is not a one-size-fits all solution...

The model that exists now actually pays rights holders pretty fairly, and is tried and tested over a number of years.

4) So the opportunities for "Remixes" are a bit of an issue in copyright at the minute, yes. WIPO put out a report mentioning the issue in 2015 and the potential need for reform. But you seem to be basing your position the idea that all rights holders will deny the use of a sample. Which just isn't true. 90% of the time they just want to be remunerated for the sample's use. Then of course comes the degree of the renumeration, which requires some negotiation. But I manage to make music and use samples perfectly legally. Why can't others?

5) How do you think Joe Average is going to fare when he has to learn about Boltzmann constants just to work out whether he can use a sample or not?

6) I noticed you didn't respond to my point about losing out on all my investment over the last 10 years. Any particular reason?

You have lots of points; I don't have the time to respond to each and every one (that's also the reply to your point 6 ;-) )

Overall: the point I'm trying to get across is that copyright must serve society and consumers first, and not rightsholders. If you want to think of it in terms of a transaction: the creator is being hired to provide a service, and that's the extent of the remuneration that should be provided, not more. Secondly, that it's not all or nothing; we could use a shorter copy right (or no copyright, eventually) and encourage creation differently. Finally, there's no question that I'm not going to come up with something as fully fleshed out as hundreds of years of legal precedent; nor even that if people in general did attempt such change with better and more fleshed out ideas that we wouldn't lose anything. But retaining every last specific positive aspect of copyright is an unnecessary bar; the replacement merely needs to have a better net benefit than indefinite copyright (which is the practical norm today). So some of the issues you point out are misunderstandings of what I meant; others are things I'm sure are plain bad ideas, but some are valid, yet acceptable. It's OK to have serious flaws, because copyright has really terrible flaws.

1c: boosting creativity in some cases is laudable... if there were no downsides. But there are huge downsides. And I'm not sure the upsides are worth the downsides at all, let alone a more realistic alternative with a pared back (but still present) copyright with some additional incentives.

2a: no. The statue of Anne was more complex than that. Vested interests (publishers) obviously wanted the control, but to sell it to the parliament and the public, which had interests in the matter, they needed to rephrase it to be in the public interest. And perhaps the mechanics of the act weren't ideal, or perhaps some of the drafters were entirely selfish; but the fact remains that it formally was to benefit "learning" in general. One hint of that is the act's title: "An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Copies, during the Times therein mentioned" - we now call it the statute of Anne ;-).

3a: mandatory fixed-price licensing: no exceptions. No data, no licensing; i.e. it's in the seller's interest to ensure that data can be made available, as it is in the buyers. This isn't an attempt to cover all bases (e.g. live); but rather to avoid the market distortions inherent in granting control to the licensing person. Literally applied to remixes that would imply that the end-user must pay the full price for each sample used in the mix - but only once, no matter how many songs it's in. You're right, this may not be practical; or perhaps it's usable for a subsection of the problem (again, the point is to explore ideas, not propose a one-sized fits all solution to everything).

3b) Perfect! we're in agreement. Who cares about new? Again: the aim is to slowly pare back copyright, and, where that would lose some of its benefits, to find alternatives that are also beneficial (even if perhaps in different ways).

4) copyright holders routinely deny the permission for derivatives. How many derivatives of windows did you see back in it's heyday? How many derivatives of mickey mouse? The control is absolute, and that is absolutely too much. Finally, and perhaps the greatest loss: people don't even bother trying to remix because it's just so impractical.

5) You don't need to be a legal scholar to use copyright either, and that is largely because people get used to it, and also because when push comes to shove you can hire somebody else that's an expert. Joe Average in some hypothetical alternative could do the same. You're implicitly assuming some kind of radical, sudden, unannounced change, and yes, in that scenario Joe Average would get confused. But not if Joe Average grew up with the alternative, and has lots of friends and examples, and can hire an expert when really necessary. Finally don't forget that Joe Average at the end of the day simply isn't all that relevant here. It's at worst unfortunate if they can't go on using exactly the same business model as before. They'll be new opportunities, to be sure, and a looong transition period (since clawing back existing copyright terms is likely infeasible). The issue is whether it's good enough for creativity without all the downsides of inflexibility and control that copyright has.

> Overall: the point I'm trying to get across is that copyright must serve society and consumers first, and not rightsholders. If you want to think of it in terms of a transaction: the creator is being hired to provide a service, and that's the extent of the remuneration that should be provided, not more.

So music is just a service economy? This is quite a simplistic viewpoint.

Copyright should serve both interests. Protect the rightsholders and allow people to use the works. Which is what exists right here, right now.

If it serves both those points already, it clearly ain’t that broke.

> Secondly, that it's not all or nothing; we could use a shorter copy right (or no copyright, eventually) and encourage creation differently.

Sure. We could. I’d love to see how big media companies act when there’s no copyright on anything anywhere. Rather than freeing creativity, it would free their bottom lines.

Also remember that most musicians don’t earn linearly from their work. It’s a long tail.

> 1c: boosting creativity in some cases is laudable... if there were no downsides. But there are huge downsides. And I'm not sure the upsides are worth the downsides at all, let alone a more realistic alternative with a pared back (but still present) copyright with some additional incentives.

You’re not sure the upsides are worth it. I am. I live in the upsides. I’ve lived with people living on the upsides. Just because you can’t see value doesn’t mean it doesn’t exist. You can only see reality as you see it.

And yes, I’m biased. I get how frustrating it must be to have a YouTube video demonetised. But things like YouTube operated outside of copyright law for so long I think it’s fair they get their comeuppance.

> Again: the aim is to slowly pare back copyright

You’ve mentioned your aim 3 times, and it seems to be different each time. So which is it? Provide benefit to society, pare back copyright (maybe not all of it) or remove copyright altogether?

> 4) copyright holders routinely deny the permission for derivatives. How many derivatives of windows did you see back in it's heyday? How many derivatives of mickey mouse? The control is absolute, and that is absolutely too much. Finally, and perhaps the greatest loss: people don't even bother trying to remix because it's just so impractical.

Depends on the copyright holder. And there are thousands of musical remixes being released everyday with the rights holders consent.

There is a balance in copyright. People who don’t want their works used can say no. If they don’t mind, they can negotiate. If they don’t care, they can just not register the work.

That is the balance. Want to remix a Lady Gaga song? Good luck. Want to remix Average Joe? You’ve got a shot.

By no means is it perfect. But I’d rather an imperfect system than be forced to give control out when I don’t want to.

Incidentally, anyone can make a parody of Lady Gaga songs. So there are existing exceptions that do allow for certain things under fair dealing.

> 5) You don't need to be a legal scholar to use copyright either, and that is largely because people get used to it, and also because when push comes to shove you can hire somebody else that's an expert.

I am an anomaly in the musician world. I worked on policy at PRS for music. So the 170 page distribution document was my bible. That’s the only reason I know what I know about copyright.

There are vast swathes of policy I never touched. Never even looked at. There’s that many different scenarios to cater for.

Average Joe is most definitely not a legal scholar. He gets confused about why TV and Radio are paid differently. He sometimes checks his cheque and is pleased when it’s near £100 (phew, one less gig to play this month!).

Average Joe also can’t afford to hire someone to understand this stuff for him. So when push comes to shove, he has to get a job in a print shop.

That’s why the system, as it stands now, works. The big hitters subsidise the little guys, potentially for decades. Then some of the little guys become big hitters and the cycle starts over again.

> You're implicitly assuming some kind of radical, sudden, unannounced change, and yes, in that scenario Joe Average would get confused.

In my experience, Joe Average got confused even if the change was announced way ahead of time. The phones in our membership department were often a difficult job as a lot of musicians fundamentally do not get on well with legal stuff. Thats why they’re musicians, otherwise they’d be lawyers...

> Finally don't forget that Joe Average at the end of the day simply isn't all that relevant here.

Once again, the people who actually create the stuff, which you say benefits society, are not relevant at all?

Seriously man. This is why copyright is designed the way it is today. Because they are relevant. Our legal system places an inherent value on the work they do and deems that their work should be protected.

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Overall - I’m happy with the current system as a musician. You’re unhappy with the current system as a [insert label here].

I’ve made a choice to accept the system for what it is and to work within the confines of it. It’s much more productive and my head hurts a lot less.

Much like tax law. We all have to pay tax, right? But no one likes paying tax...