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301 Redirect: Copyright and Culture

What would it mean if you had to pay a royalty to perform a piece of music in your own home? Perhaps at some point in the future, you might pay ten cents for each performance of a lullaby that you sing to your child.

Sounds absurd, doesn’t it?  It strikes to the heart of the most important question, however, of the copyright debate.  What is culture? Is it a product that industry serves up to us a consumable, or is it something else?  What does it mean when culture becomes a product?  

As societies around the world debate copyright and intellectual property rights legislation, these are the questions that need asking.  The terms of the debate need to be framed around the societal impact of granting the right to control culture to corporate interests, and how the right of industry to control culture impacts society.

Sunday we saw Diana Krall in concert at the NAC.  Krall, by her own admission, is an interpreter of others music.  She writes very little of her own music, but like legions of musicians before her, she plays, rearranges and reinterprets the music of others.

It was a marvellous show.  She played music by Peggy Lee, Nat King Cole, and Joanie Mitchell, as well as tunes from her recent CD’s.  Part way through she also vamped a little with some light hearted rearrangements of the Hockey Night in Canada theme song and Bohemian Rhapsody by Queen. Despite the size of the NAC’s Southam Hall, the show was intimate.  You had the sense throughout the evening that you might find Diana Krall performing the same pieces at home for her family and friends. 

Just a hundred years ago, performed-at-home was the predominant way that people shared music.  They played it for each other, they sang it together, they learned it from one another, and they quoted from one another.  In some parts of the world, it still is.  Just find a mariachi band in Mexico, and you’ll find Mexicans singing along. Everybody knows the songs.  For Mexicans, the songs are part of their culture.

I’d imagine, however, that Ms. Krall’s agents have paid the royalties and licensing fees required for her to perform her versions of the old classics she sang.  It wouldn’t surprise me to learn that a royalty on every CD sold is paid as well.  We don’t live in the world of a hundred years ago where music and culture were synonymous.  Today music may be culture, but mostly it’s a product owned by corporate interests.

Saturday, family members attended a funeral for a neighbour, and afterward Janice remarked that very few people sang the hymns.  In fact, we’ve noticed this ourselves on Sundays at church.  Most people stand silent during the hymns.

Why?

Perhaps it’s because not as many people go to church anymore.  Perhaps they don’t know the hymns.  Perhaps they can’t read the music, because music isn’t routinely taught in schools any longer.  It may sound patrician to my children’s generation, but when I grew up only the illiterate couldn’t read at least a few notes of music.

That doesn’t explain, however, why the regular churchgoers don’t sing.  I believe that explanation lies in a cultural shift.  Music isn’t something that people ordinarily perform or share through performance. Music is something that people ordinarily buy on plastic discs, and increasingly over the internet.  The entertainment industry was built to distribute culture to the masses, and now seeks to define culture for the masses on their terms and at their price.  They seek to define culture as a product which the masses passively consume.

Friday, Lord of the Rings fan Brian Lavery released The Hunt for Gollum, a 40 minute short created with the help of 160 of his friends. His move is a new plot, with new characters, new actors and new music. A high quality production shot for just £3,000, Lavery was able to do this with 160 volunteers, and the permission of the copyright holders, “as long as we don’t make any profit from it.”

Some may view the studios decision to allow Lavery’s project to proceed as remarkably generous.  Some may see it as a good public relations move.  Why isn’t it seen, however, for what it is – the imposition of a tax on the story teller?  Yes, the crown – sorry, the studios – have waived that obligation, but why were they permitted to levy that tax in the first place?  Why have we given them a monopoly on story telling?

For the last few weeks, Janice and Ben have been reading Harry Potter to each other.  Mother and son are enjoying the time together.  Parents and children have been enjoying books together like this for as long as children’s books have existed.  But what would the law say if these two were to record their reading of the book, and put it up on a blog to share with their cousins?  At that point, they would be copyright infringers, no?

Alright – I can hear screaming “Get to the point Saunders!”.

Just last week, the US Trade Representatives annual 301 report elevated Canada to its “Priority Watch List” along with China, Russia and India.  The rationale is that “the Government of Canada has not delivered on (its) commitments by promptly and effectively implementing key copyright reforms. The United States continues to have serious concerns with Canada’s failure to accede to and implement the WIPO Internet Treaties, which Canada signed in 1997. We urge Canada to enact legislation in the near term to strengthen its copyright laws and implement these treaties.”

It amounts to nothing more than a demand that we surrender our culture to the corporate interests represented by the entertainment industry trade lobby.  Canadian legislators have long complained that the 301 process is an instrument of US trade lobby groups.  Nowhere is it more apparent than in the preceding paragraph. 

(Geeky aside – on the internet, a “301 redirect” is a permanent redirect from one web site to another.  The 301 process feels a bit like a permanent displacement of indigenous culture with American culture.)

So ask yourself what a world where ordinary people don’t sing or play music anymore might look like.  Would it produce any more Diana Kralls? Would there be common cultural references in music?  Literature? Would the Brian Lavery’s of the world be able to create new derivative works from existing cultural icons? Would you have to pay each time you took a favorite book of the shelf (virtual, of course) and reread the best passages?  Would you be taxed for reading to your children?

It sounds absurd, I know.  However, the confluence of technological advances, our sheep-like acceptance of the American position that culture is a product, and governments knuckling under to US trade lobbyists around the world, are leaving us all vulnerable to bad laws which would permit these kinds of abuses. 

And most countries are falling in line, and heading like sheep to the slaughter.

Genuine copyright reform must balance the culture of a nation against the needs of the corporations that distribute that culture.  Today that relationship is completely unbalanced. Our government, and governments the world over, should take the opportunity represented by the absurd US 301 report, and begin this important conversation with the people.

{ 5 comments… add one }

  • Greg May 4, 2009, 3:09 pm

    Even setting aside the $0.10 per usage… what about the beaurocracy involved? Over-enforcing copyright sounds like an exercise in futility. Should a garage band have to file the necessary paperwork before practicing a new song to add to their set of covers?

    Even famous people cover each others’ songs impromptu. If U2 suddenly broke into a Springsteen song, I doubt the Boss’s lawyers would be calling up on the phone. Yet, you couldn’t (perhaps “shouldn’t”) have that sort of double-standard. If a garage band would get dinged for adding a cover to their set, why should U2 (just as an example) be exempt?

    What about lounge acts who take requests? Are they supposed to catalog the songs they play, then AFTERWARDS contact the copyright holders for permission and pay up the royalties?

    Admittedly, I haven’t done any actual research in the laws involved before writing this comment, but I believe there are “fair use” laws that apply for some of these situations. It would be a real shame to replace “fair use” with beaurocracy and litigation.

    Yet, that’s what the intention seems to be. Tighten up those laws too much and you are indeed stripping away a valid expression of culture.

  • Alec May 4, 2009, 5:12 pm

    Greg, you’ve highlighted that today it would be hard to manage such a regime. My worry is that the technology to develop a friction-free enforcement regimine is almost here. What would the world look like if every book was electronic, and you could only use a local copy while you paid the subscription fee? What if software like the wonderful Midomi on my iPhone were used to identify the songs that lounge singer sang, and present the singer with a bill at the end of the evening?

  • MGU May 5, 2009, 2:27 am

    Congratulations on an excellent article.

    I think there is more to this than commercial gain. I can remember when one of the criticisms of communism was that it dictated what you were allowed to consume. It decided whether you could own a TV or a library card and what programmes/books would be produced and distributed. Thereby it created a national midset. The same is being attempted by the commercial cultural industry in the US.

    Dad

  • Ward Mundy May 6, 2009, 3:43 am

    The really shocking part of all of this is that there was no U.S. copyright on music before 1971. What's more amazing is the scope of the monopolies the lobbyists have been able to create for their clients in less than 40 years… not that Congress would be motivated by financial contributions or anything like that, of course.

    • Alec May 6, 2009, 4:19 am

      I think the mere fact that the 301 report is so transparently an instrument of the entertainment industry says all that needs to be said about the flow of funds to congress, Ward.

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