NMPA's Internet Anti-Piracy Task Force has prepared a paper, The Engine of Free Expression: Copyright on the Internet, to illustrate how copyright protection in the computer-driven Age of Information is the engine of free expression, and why it is especially important that the Internet serve as a nurturer—and not as a destroyer—of the incentive to create that drives the marketplace of ideas.
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The Engine of Free Expression:
Copyright on the Internet
In a landmark U.S. Supreme Court decision, Justice Sandra Day O'Connor wrote that copyright protection --far from being inconsistent with the rights of free speech and freedom of information-- is the very engine of free expression. This principle is not new. Over two hundred years ago, Benjamin Franklin, Thomas Jefferson, James Madison, and the other champions of American democracy, considered copyright protection and the ownership of intellectual property so essential and complimentary to freedom of speech that they included a mandate for it in Article I, Section 8 of the U.S. Constitution.
The goal of this paper, prepared by the National Music Publishers' Association's Internet Anti-Piracy Task Force, is to illustrate how copyright protection in the computer-driven Age of Information is even more so the engine of free expression than it was in the days of the Colonial printing press, and why it is especially important that the Internet serve as a nurturer --and not as a destroyer-- of the incentive to create that drives the marketplace of ideas.
How Copyright Serves the Public
By ensuring that creators are fairly compensated for the use of their works, strong copyright laws encourage the broadest possible participation of citizens in the creative process. While we do not subscribe to Dr. Johnson's claim that "no man but a blockhead writes for free," it is certainly true that compensation for the use of copyrighted works enables those whose works the public deems of value to continue creating, while encouraging newcomers with something to say to join in. The national and global culture is enormously enriched by such a system, which rewards the most popular and talented creators and allows them to devote themselves full-time to their art. Great works engender increased public discussion, and the creation of new art, to the betterment of all. Creators who are so inclined are always free to distribute their own works free of charge, but that is a choice to be made by the creator for his or her own original works of authorship. (This notion is the same as that underlying all property rights: with ownership comes the right to control use).
By the same token, without adequate copyright protections and enforcement, the fruits of human creativity are severely diminished. Uncompensated creators are not afforded either the time, the resources, or other incentives to create. After a while, the well of great new works runs dry. The breakdown of the copyright system in post-Soviet Russia, a nation with a rich history of creative accomplishment, can teach us all a lesson. Just as the strictures of totalitarianism were being removed from the lives of Russian creators, the traditions of copyright protection and enforcement were abandoned. The result has been the utter dissipation of Russia's creative community. Some creators have fled to the West. Others have been forced to abandon their craft. Either way, the output of creative works has nearly ceased, a sad result for a great culture.
The Myth of Free Information
At no time in history has it been more important for the public to recognize the value of copyright protection than in the Information Age. The threat of piracy --the use of someone else's creative work without permission or compensation-- has grown with the Internet. The Net has given every person on earth with access to a computer and a modem the ability to engage in the unauthorized, mass distribution of any type of creative work. Since the power of the Internet can, with the mere push of a button, easily destroy the global monetary value of a work to its author, copyright protections may be even more important in the virtual world than in the physical one.
The creators and copyright owners of American music want the public to understand that violating the copyright laws by posting, downloading or sending protected works over the Internet or other computer networks without authorization of the copyright owner, is unfair, unlawful, and ultimately counter to the interests of honest Internet citizens. There are some Internet users, however, who still don't see it that way. These dissenters cry that "information wants to be free."
If we define "information" to mean facts and ideas, it is impossible to disagree. The U.S. Copyright Act itself explicitly recognizes that facts and ideas are not protectable, and may be distributed freely by and among members of the public. It is the expression of those facts and ideas that is protectable, so as to encourage creativity. Music and other works that entertain us constitute expression and are subject to copyright protection as a property right. Just as the law protects us against someone driving away with our car without permission, it also enables a songwriter or a music copyright owner to prevent someone from taking his or her work without permission and selling it or distributing it to vast numbers of people on the Internet. For creators, this is not only a matter of fairness, but of economic survival.
The Rationalization of Theft
Several popular music websites consist largely of a network of users who --without authorization-- make and distribute to one another derivative works (i.e. arrangements) and full length copies of other people's copyrighted musical compositions. These unauthorized copies take the form of both sheet music (a category that may also include lyrics and tablature in addition to traditional notation) and audio renditions. Their distribution is in clear violation of the exclusive rights granted to creators and copyright owners under the U.S. Copyright Act and other national laws to make, arrange and distribute works.
In an attempt to justify their activities, many unauthorized music users have rationalized their actions as hurting only those stars "who are already rich." Economically successful music creators and companies are not the principal victims of cyber-theft, however. The music community consists mainly of thousands of small, struggling publishers and little-known songwriters, and it is their ability to survive that is most strongly and adversely affected by copyright infringement, whether on-line or otherwise.
Some argue that such theft actually serves the interests of its victims. "You sell more records and get more exposure as a result of our activities," is a familiar claim. This same argument has been made for decades by other music users who would also prefer not to pay for what they can easily take. Broadcasters frequently claim that they should get free use of music because the exposure they provide helps to sell records. Users ranging from film and television producers to restaurant and club owners have made similar assertions. Record manufacturers have argued for free use, claiming that without the widespread availability of recordings, songs would never get airplay. Producers of fake book (sheet music pirates) have made all of the above claims. With all of these "friends" of the music community helping to boost the popularity of songs through their unauthorized uses, creators would starve without proper protection and enforcement through the copyright laws.
Many infringing website administrators argue that they are different because no one "profits" from their allegedly "non-commercial" uses. This is patently untrue. Thousands of users derive substantial economic benefits by getting reams of sheet music or hours of audio for free, and in the process, displacing millions of dollars in sales and royalties which would have gone to support the creators and copyright owners of the works utilized. Such infringing websites are essentially part of a massive barter network in which goods that do not belong to the users are traded back and forth to the enormous detriment of the true owners. This is not an activity that courts are likely to determine constitutes "fair use."
Recognizing the danger posed by infringing websites, and even "barter sites" Congress recently enacted legislation to criminalize the activities of net pirates who upload protected works for the purpose of making them available to a mass audience without authorization, irrespective of whether such infringement is carried out for personal financial gain. Operators of infringing music sites should be aware that their activities could fall within the scope of this criminal law, known as the No Electronic Theft Act.
The Licensing Solution
The solution to the problem of keeping music websites available to enthusiasts is to make them licensed sites. That means persons responsible for the sites and the uses made on the sites must apply to the copyright owner of the music for permission to upload it onto their network by such owner prior to each upload. If permission is denied, the prospective uploader must forego the use. If conditions for the payment of royalties and other use limitations are agreed upon, the administrators must see that such licenses are enforced.
Seeking permission to use music is not difficult, burdensome or costly. NMPA will be pleased to help internet music users to contact the copyright owners in order to establish a dialog that may lead to licensed uses. The currently infringing sites can eventually develop into sites which serve the interests of all Americans --including those who need to earn a living from their creative works now and those who hope to do so in the future-- but only with the cooperation of those sites' users.
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The WIPO implementing legislation summary provides details of the Digital Millennium Copyright Act. View the text of bill H.R. 2281 which became Public Law 105-304 of the 105th Congress at http://thomas.loc.gov. |
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Read a final summary detailing key provisions of the Sonny Bono Copyright Term Extension Act and New Provisions of Music Licensing (S.505, 105th Congress). View the text of bill which became Public Law 105-298 of the 105th Congress at http://thomas.loc.gov. |
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Testimony of Mike Stoller On Behalf of National Music Publishers' Association Before the Subcommittee on Courts, the Internet and Intellectual Property Of the House Committee on the Judiciary — May 17, 2001 |
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Reply comments of The National Music Publishers' Association to Copyright Office |
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Joint Reply comments of The National Music Publishers' Association, The American Society Of Composers, Authors and Publishers,The Songwriters Guild of America and Broadcast Music, Inc. to Federal Communications Commission in the matter of Digital Broadcast Copy Protection — February 27, 2003 |
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Comments of the NATIONAL MUSIC PUBLISHERS’ ASSOCIATION before the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property on H.R. 1417, the Copyright Royalty and Distribution Act of 2003 |
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NMPA Joint Reply Comments with respect to copy protection scheme April 28,2003 |
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CARP Reform Bill - H.R. 1417, the Copyright Royalty and Distribution Act |
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