Music, freedom of expression and copyright

Music gives us the unrivalled ability to harness emotions, solemise events, express political sentiment, reach a spiritual awakening and even start a revolution. Music is the ultimate form of the freedom of expression. But the freedom of expression is not a justification to acquire music via illegitimate means. In 2013, it was reported that music piracy cost the Australian economy $1.3 billion dollars per year. In 2012, Australia was deemed to be the world’s worst for illegal music downloads based on per capita downloads. As a population of only 23 million people, we have access to 27 licensed digital music services, in addition to the bricks and mortar stores – that is an awful lot of choice. However, in the digital age where information is often freely and immediately available – do we feel entitled to free music?

“Music is the heart and soul of digital and digital is the heart and soul of music. [However] the right to override an artist’s choice is an odd assertive right. People should think before they make that choice – an artist has said ‘this is my income, livelihood and passion and I’d like you to respect this choice’” says Vanessa Hutley, the General Manager of Music Rights Australia.

Vanessa Hutley, General Manager of Music Rights Australia

Music Rights Australia was established to work with its stakeholders to protect the creative interests of artists within the Australian music community through educational initiatives, government lobbying and the protection of artists’ copyrights. It also represents both sides of what is thought of as music industry: the record labels both – major and independent – through the Australian Recording Industry Association (ARIA), as well as the songwriters and music publishers through Australasian Mechanical Copyright Owners’ Society (AMCOS).

Vanessa believes that the shift in the model of revenue flow could have also attributed to the change in perception of the value of music. Instead of owning music (in the form of CDs for instance), which is the basis of the ownership model, we are increasingly shifting towards to access model. The access model dominates the digital space today. Uber, Airbnb and Netflix are examples of services that employ the access model – where the consumer doesn’t necessarily ‘own’ the good or service but are granted access to it on the basis of micropayments. Music streaming services such as Spotify, Tidal and Pandora employ the access model – making music readily available to play on any device, at anytime, anywhere and with the ease of sharing it with others.

However, the access model may also be fuelling a misconception of the value of music. Today, where “digital is music, and music is digital, there is often confusion between the concepts of the speed of distribution and the speed of creation”. The fact remains that it still takes days, weeks or even months to produce one song, but the ease of distribution of music is fuelling the ‘want now’ culture in music. “This obsession of want is translated into rights and then it becomes settled rights and then its basically someone wanting to take [music] without paying for it and wanting it for free”.

‘I want’ trumps everything – the immediacy of need is not thought of as having a consequence

A 2011 report on the Wellbeing on Musicians claimed the average income for a professional musician today falls somewhere between $7,000 to $12,000 per year. The Australia Council reported that out of the 60,000 musicians registered with APRA | AMCOS (Australasian Performing Right Association | Australasian Mechanical Copyright Owners), only 7900 people reported primary musician occupations such as instrumental musicians, singers, composers or music directors. Monetary loss aside, music piracy is also compromising the artist’s life as a musician.

When people talk about piracy they only say this is about money, they don’t really understand it is also about an artist’s choice – if you take away an artists ability to make a living that will ultimately compromise their artistic life. If they’re not able to hire a studio or an orchestra – you are compromising their artistic life. These are the issues we need to consider – you are compromising the artistic vision – its not about the dollar its about the choices being made that will ultimately compromise their life as a musician.

This is where the role of copyright becomes important. “Copyright exists for musicians to be able to assert their rights,” states Vanessa. Copyright is property – a copyright owner is allowed a bundle of rights to make decisions about where, when, how and who can have access or use or gain the benefit of some of those rights.

Every musician and every performer wants to find an audience, all they ask is that they don’t take their music without permission.

However, the right to not give permission is also a musician’s prerogative. An artist should also be allowed to refuse the use of their work in instances where they are not comfortable or believe that the use reflects different/incorrect ideals of their work. “Someone who has different ideals to what you have [and] wants to use your work in their work and transform it into something that you don’t agree with – should they be able to do that?”

There is no straightforward answer to that question. For instance, the United States enlists the ‘fair use’ provision which attempts to balance the First Amendment right to the freedom of expression, statutory damages provision and copyright laws, by providing an exception to the exclusive rights of the author of the creative work for specific purposes. Whereas, due to the absence of the freedom of expression and statutory damages doctrines, Australia has taken the ‘fair dealing’ approach, which “creates statutory exceptions for parody, research, reporting where you aren’t misusing the material, you using it in certain ways to create expressions and express yourself in public domain”. Which is the correct approach? Answer: There is no such thing as the correct approach. Each and every country has a unique political, legal, economic and social backdrop. Additionally, copyright is an intricate area of law where along with the legal system currently in place, judicial discourse and legislative incentives are crucial factors that also need to be considered.

The most important thing to note is that copyright plays a crucial role in undermining the ‘I want’ culture and enabling the ‘I respect’ culture. Because, ultimately, it is all about respecting the musician.

If you don’t respect the value or respect the commercial power of the artist – what is the sustainable model?

A version of this article was published in The Brief, check out the fantastic second edition of the magazine here.  

Feature Image Source: Wikimedia Commons

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