Tuesday, March 01, 2005

The Tyranny of Copyright - Part VI

Justin Levine over at Calblog has a piece in his continuing series on the Tyranny of Copyright:

Article in today's Wired that really hits home for me.

One of my first jobs in Hollywood was as a post-production coordinator for the now defunct MTM Enterprises.

I had one assignment on that job that broke my heart - having to completely excise all of the original rock music from every episode of the classic television show WKRP in Cincinnati.

All of the popular rock songs were taken out and replaced with generic upbeat Muzak that could be used with a one-time, flat licensing fee.

Since even the accidental airing of an original, unaltered episode on a single station could trigger a massive lawsuit against the studio, the order came down to

destroy every known copy of the original show except for a single 1" Master video, any 2" tape copies (which cannot be played without the use of rare and defunct 2" video tape players) and the original production elements which were sent into deep storage. (The only reason the 1" Masters were retained is because my boss fortunately figured that it might be important to have at least one copy left for preservation purposes).

Once again, living proof that the current copyright scheme does not encourage the dissemination of works - but actually hinders it instead.

It is simply a mistake to have all rights under copyright schemes to be freely divisible in terms of time, territories and the media that the underlying work is delivered on. The concept of music "residuals" also makes increasingly little sense in today's digital world - serving no purpose other than to repress works from the past and fill-up the coffers of media conglomerates.

The whole concept of "residuals" has been problematic to begin with. If you need a toilet fixed, which economic model makes more sense -

1. Paying a single fee upfront for work rendered by the plumber? or

2. Paying a somewhat smaller fee upfront, and then continuing to pay the plumber $0.25 every time you flush during the entire life of the plumber (and perhaps the life of his children) since you are using the benefits of his work? With more popular plumbers charging a higher "residual rate" per flush perhaps?

I suspect the idea of "toilet residuals" would impact the economic decisions of most people - perhaps forcing them to always "hold things in" except for a fixed number of times in a given week.

If this idea seems silly (and it should seem silly to most rational people), then why is it a good idea to apply it to the use of music? If people insist on equating intellectual property with the elements of real property, then there is no reason not to also equate real property with elements of intellectual property.

Why not go to a single flat-fee system that is paid up front? The lack of residuals might force such fees to increase more than they otherwise would, but it would bring economic certainty and a more efficient and thorough use of creative works that are unencumbered by future calculations of costs and litigation (not to mention the time it takes to research who actually owns the rights to works in question if the works are given to third parties for further distribution).

A more reasonable scheme should be a one-time flat fee to use an already copyrighted work within the body of another newly created work (assuming that the use wouldn't already be covered under a robust scheme of fair-use). In exchange for the one-time fee, the "author" of the first work (i.e., the corporate entity in most cases) relinquishes all rights to prevent distribution of the new work in all territories and mediums for the length of the copyright in the new work.

But once again, copyright law is no longer about providing incentives - it is simply an economic monopoly created for a class of special interests.

Sorry WKRP lovers...one of the best shows in the history of television is doomed to be relegated to the historical-cultural black hole of intellectual property laws.

Tyranny of Copyright - Part V

Part IV (with links to Parts 1-3)

Now, who would get the royalties if my patients started hearing music from broadcast radio in their fillings?

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