Between Protection and the Public Domain Lies a Lifetime (plus 70 years)

In battles over the scope, value and morality of copyright three main players are put in play: the authors (who create the material that can be copyrighted); the companies (who make money out of those copyrights, through assignment or ownership); and the public (whose access to these copyrighted goods can be restricted, dependent on how much the goods cost).

When companies have wanted to extend copyright they have called upon the figure of the author. This practice has a long history. In 1710, Britain passed the world’s first copyright law: the Statute of Anne. This Act, which was concerned with the book trade, set a time limit on the period for which intellectual property could be owned. Authors were granted the initial copyright in their works. This right could be assigned to another party, but its duration was restricted for an initial term of fourteen years. If the author was still living at the end of this period, copyright could be extended for a further fourteen years.

            Prior to the Statue of Anne, the Stationers’ Company had dominated the British book trade. This organisation had reserved the ownership of book copyrights to its members and viewed the duration of ownership as being perpetual. According to Adrian Johns, the booksellers were ‘horrified’ by the prospect of a limited term and they successfully lobbied parliament during the passing of the Statute to have its proposed authors’ rights reduced.

            These booksellers began to think differently about authors. In the mid-1700s, when the initial 21-year period of the Statute of Anne was reached, there was a ‘battle’ over the duration of copyright. On the one side were booksellers from Scotland, who were not members of the Stationers’ Company. They argued that the Statue of Anne created a firm 21-year limit. On the other side was the Stationers’ Company itself. These booksellers argued that the Statute of Anne supplemented, rather than replaced, British common law. Although the Company’s power had originally derived from Licensing Acts, which had given them their perpetual monopoly rights over the publishing of books, their claims to ownership were now made via their authors. They argued that writers had a property right in their works whose duration was without limit. This right could be assigned, but it could not be curtailed. Initially, the Stationers were victorious. The author’s common law right was affirmed in the case of Millar v. Taylor (1769). This ruling was soon overturned, however. The case of Donaldson v. Beckett (1774) firmly established a set duration for copyright within British law. In doing so, it created the idea of an authorial public domain.

            Although author’s rights had failed to deliver the Stationers’ desired aims, the author emerged as the figure upon which it was best to pin arguments for copyright extension. Lee Marshall has noted how writers henceforth assumed a central position within copyright law, signalled by later copyright acts, which began to associate the duration of copyright with the birthdate of the author, rather than with the date of the publication of the work. In 1814 the term of copyright was extended to the author’s lifetime or 28 years after publication, depending upon which was longer. In 1842 it was extended to author’s lifetime plus seven years or 42 years from publication. By the 20^th century it was only the author’s lifetime that mattered. The 1911 Copyright Act introduced a term of ‘the life of the author and a period of fifty years after his death’. The 1988 Copyright, Designs and Patents Act extended this to ‘70 years from the end of the calendar year in which the author dies’.

            This is not to say that authors have been the main beneficiaries of these changes. Marshall warns us to be wary of their glorification. He has sated that

the Romantic author is the primary rhetorical tool which copyright holders use to counter copyright infringement and gain stronger copyright protection. This is because the centralisation of the author leads copyright to be understood not as an economic issue but as an aesthetic, and thus a moral, one.

Siva Vaidhyanathan has stated similarly that ‘The unrewarded authorial genius’ is the best way of ensuring ‘maximum protection’, while Mark Rose has noted that ‘the notion of the author as the creator and ultimate source of property’ has been ‘at the heart of the long struggle over perpetual copyright’. In short, perpetuity seems more reasonable when the case is being made on behalf of authors, rather than for the companies to whom their rights have been assigned.

            The laws that have benefitted the publishers of books have also benefitted the publishers of songs. In 1777 a test case was won by Johann Christian Bach and Carl Friedrich Abel, which established that ‘a musical composition is a writing within the Statute of the 8^th of Queen Anne’.  The duration of songwriting copyright has subsequently been twinned with and reliant upon the campaigning that has taken place in respect of books.

            Sound recording copyright has worked differently, but here too the Romantic artist has been employed. Performing artists are rarely the initial owners of sound recording copyright; this honour is instead more commonly awarded to their record companies. The music industries have nevertheless been aware that artists are the best means to extend copyright. In 2004 the British trade journal Music Week launched a campaign to increase the duration of sound recording copyright from 50 to 70 years. In their editorial they advised:

Let us be clear: this is not an issue which affects just record companies. And if it is presented as such, any attempt at change will be far harder to achieve. This affects the entire creative community – and that is a message which must be hammered home.

In placing the artistic community at the centre of their campaign they made some peculiar claims, arguing that

When the 50-year term was introduced in the UK, half a century ago, it was intended to reflect life expectancy. Today, when Britons can expect to live for longer, an 80-year-old musician cannot earn royalties from the work he recorded in his twenties – just when he needs the money most. That is a scandal.

While it might have been true that Britons were living longer, Music Week’s knowledge of copyright history was suspect. The 50-year term had been introduced in the 1911 Copyright Act, rather than the 1950s. Moreover, sound recording copyright was explicitly differentiated from copyrights whose duration was based on the life of the artist. Duration was instead pinned to the year in which the recording was first released.

            There were further oddities about Music Week’s campaign. Industry insiders and experts were called upon, several of whom talked about sound recording copyright reverting to artists. Pete Jenner stated ‘Any extension of copyright must benefit the creators/performers. That could be achieved by giving copyrights back to creators’. Music Week noted that Feargal Sharkey had successfully ‘regained ownership’ of the Undertones sound recording copyrights. Sharkey himself suggested that sound recording copyright should follow the ‘rights reversion’ policies of the music publishers.

            This idea of reversion came to be enshrined in law. In 2011 the European Union issued directive 2011/77/EU, which extended the duration of sound recording copyright to 70 years. Although they pinned this term to the date of release, rather than the life of the performer, Clause 8 of the directive suggests – erroneously – that the initial ownership of sound recording copyright resides with artists:

The rights in the fixation of the performance should revert to the performer if a phonogram producer refrains from offering for sale in sufficient quantity, within the meaning of the International Convention on the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, copies of a phonogram which, but for the term extension, would be in the public domain, or refrains from making such a phonogram available to the public.

I welcome the fact that this directive has provided record companies with a ‘use it or lose it’ scenario regarding their sound recording copyrights. However, the idea that these rights might revert to artists is bogus. If they do manage to get hold of them, most of them will be owning them for the first time. 

A Great Friggin' Swindle? Sex Pistols, School Kids and 1979

I mentioned in an earlier post that I have written an article about the Sex Pistols for the academic journal Popular Music and Society. It is now available via this link. The article looks at the popularity of the Sex Pistols in 1979, a year that is still overlooked in favour of the headline-grabbing punk year of 1977. In many ways this is unjust. In Britain, there were more punk hits in 1979 than any other year; there was also a new, younger generation of fans who were getting into the music. These schoolchildren discovered the Sex Pistols via Sid Vicious rather than Johnny Rotten, and their rebellious anthem was 'Friggin' in the Riggin'' rather than 'God Save the Queen'. They heard The Great Rock 'n' Roll Swindle before they heard Never Mind the Bollocks. I know, because I was that schoolchild. The article locates the teenage appeal of 'Friggin' in the Riggin'' in its themes of swearing, sex and piracy. It also explores the media infrastructure that enabled young adolescents to access punk music. It then looks at the legacy of the Sex Pistols', charting the triumph of Johnny Rotten's narrative over that of Malcolm McLaren, and argues that The Great Rock 'n' Roll Swindle fell prey to notions of coherence, canonicity and - dare I say it - authenticity.

And Don't it Feel Good?

How much is a hit worth? In 2012 the BBC broadcast a documentary titled The Richest Songs in the World, which provided a countdown of what they believed were the top ten earning songs. Their number one was ‘Happy Birthday’, which they claimed had earned around £30m in publishing money since its disputed origins in the late nineteenth century.

            If recent news stories are true, a hit song is worth far more than this. It was reported last week that BMG publishing have paid £10m to acquire the rights to the Kyboside Catalogue, which represents the works of a single songwriter, Kimberley Rew. Its value is primarily located in just one of his songs. Rew is the guitarist and principal songwriter writer for Katrina and the Waves. The group recorded the original of ‘Going Down to Liverpool’ and secured Britain’s last victory in the Eurovision Song Contest in 1997 with ‘Love Shine a Light’.

            The jewel in his crown, however, is ‘Walking on Sunshine’. This is the song that BMG have paid all this money for. Alexi Cory-Smith, the company’s executive vice president, said ‘“Walking on a Sunshine’ is a classic copyright, an instantly recognisable song and a very powerful addition to our roster’. Their head of marketing & sync, Patrick Joest added, ‘The striking thing about “Walking On Sunshine” is its ability to work across virtually every medium from film to TV and advertising in – and in virtually any product category’.

            But £10m? This wasn’t a number one record – when first released in 1985 it made it to number 8 in the UK charts and number 9 in the US - and Katrina and the Waves are some way off being inducted into any music industry hall of fame. There were even fears that the devastating hurricane Katrina of 2005 might have dented the song’s appeal. If ‘Walking on Sunshine’ is worth this much, what is the actual value of ‘Happy Birthday’? What about the Beatles hits, or of the Jewish Christmas classics that populated the rest of the BBC’s richest songs top ten? That said, it was always apparent that ‘Walking on Sunshine’ had something special. I was in one of my first bands when it came out. It was a song that my band mates loved. We discussed and we analysed it and we were jealous as hell. You always know when someone else has nailed it.

And Now This is Me

Authenticity. Oh dear. It makes me wince to write that word. It is the most over-used and over-valued concept in popular music studies. And I stress studies rather than popular music itself. I’m sure that authenticity exerts a greater pull on scholars than it does on artists or audiences. In the UK, at least, there is a long-standing tradition of theatrical pop music. The country is home to cracked actors and pantomime dames. The focus in this instance is not on keeping things real.

            This is not to say that authenticity doesn’t matter. It does form a part of popular music’s pleasures. Most regularly, it resides in a singer’s voice. It is here that we locate a purity of expression and artistic earnestness. Above all, singing is the prime means of measuring an artist’s soul.

            But singing is a technical skill. What’s more, this skill is emphatically displayed in vocalists who come from the rhythm and blues world. They are making the voice do extraordinary things. And whatever it is they are doing, it is a long way from the vocalist’s everyday patterns of speech.

            In this sense, singers have a lot in common with impressionists. They are able to imagine their voices into the places where they want them to be. They can manipulate them and mangle them and squeeze them somewhere new. In fact, there is a trade off between the two practices. Many of the best impressionists are also adept at singing: Rob Brydon; Steve Coogan; Jane Horrocks; perhaps even Mike Yarwood. Many great singers are good at accents. There was, after all, a whole generation of British vocalists who located themselves in the mid-Atlantic. And there are numerous singers whose singing voices bear little relation to their spoken ones. This applies as much to Prince and Amy Winehouse as music as it does to Geddy Lee or Bryan Ferry. There are also singers who have numerous voices. Marvin Gaye and David Bowie, for example, will assume a number of different characters on the same record. 

            And yet we rarely talk about the authenticity of impressionists. Mimicry is one of the few practices not to have been described as ‘the new rock ‘n’ roll’. Mike Yarwood attempted to show us why. In his programmes he would make a sharp distinction between his impressions and his singing. Breaking the fourth wall at the end of his shows, he would turn to the camera and say ‘and now this is me’. He would then sing a song. His impressions, he was telling us, were of others; his singing represented his true self.

Things are more complicated than this. On the one hand, the singer could be regarded as just another of Yarwood’s routines. On the other, are people really being false to themselves when they adopt a persona? Costume can be a way of finding something deep within. This is one of the legacies of minstrelsy. It’s also something that Barack Obama indulges in.

            He’s one of the great orators. He also probably has the best singing voice of all US presidents. And he indulges in impressions. All three were in evidence in his eulogy for Rev. Clementa Pinckney, who was gunned down in his church in Charleston, South Carolina, along with eight of his parishioners on 17 June. Obama delivered a powerful speech about race and about resistance, as well as about the symbolism of the confederate flag. He concluded with a decent version of ‘Amazing Grace’, bending the notes in the appropriate vernacular. What was most starting, however, was when this vernacular appeared in his speech. The eulogy was patterned on the rhythms of a minister from a black southern church. As he became more impassioned, Obama got more deeply into character. His accent became southern. This was most notable after he concluded his hymn and sermonised that each of those shot down had ‘found that grace’. As he wound up this litany it was almost as though he had to shake off the southern preacher in order to return to his everyday voice.

Was any of this false? I don’t think so. If anything Obama was more genuine when he was in character as the preacher than he was when playing the president of the United States. He was responding to the situation, feeding off the cheers of the parishioners in the assembly hall and the words of endorsement from the clergy who were lined up behind him. At the end of the speech, Obama looked almost surprised at what had happened to him. He had achieved some sort of transcendence.

We don’t find authenticity by keeping things real; we come closer to locating it when we let ourselves go.

Playing by the Rules

I’m going to miss Hull. I’ve been living in this city, on and off, for the past year. It’s a good socialist town and one that does not wear its tolerant past lightly. The legacy of William Wilberforce makes a difference. From the start of August I’ll be living in London full time. More than ever, England’s capital feels as though it is the capitalist system incarnate.

            Hull, in contrast, is the sort of place where you can see someone wearing a Slavoj Žižek t-shirt and it doesn’t look like too much of a pose. This evening I was sat next to someone who bore his slogan: ‘In football we win if we obey the rules. In politics we win if we have the audacity to change the rules’.

            This is a resonant phrase to see in England this week. On Wednesday, Tony Blair warned members of the Labour party against voting for the left wing candidate Jeremy Corbyn in the forthcoming leadership elections. Doing so, he offered the dubious advice: ‘when people say, “my heart says I should be with that politics”, well get a transplant’. Blair was telling his party members not to have bleeding hearts. They should forget about safeguarding the National Health Service, the universities, the arts, union rights. Instead, they should adopt the dominant neo-liberal agenda, even if it feels utterly wrong. He was instructing them that following your conscience will not gain you power. If you want to win, you are better off mimicking the Tories. It pains me to think that Blair is more in tune with our times than Žižek is. In politics, unless there is a crisis, the winners are those who can best ride the hegemonic crest of the wave.

            Žižek is wrong about football as well. Or, at least, he needs to think more carefully about how rules work in this game. In football playing by the rules can involve breaking them. This is why there are two separate codes of conduct: the rules of the game, and the spirit of the game. It is a sport that has professional fouls and tactical transgressions. As with so many things, this can be best illustrated by the Uruguayan player, Louis Suàrez. He is surely one of the most brilliant players currently playing the game. Suàrez knows that rule breaking can reap benefits. His biting escapades are not the best example of this. Instead, think of his performance in the quarter final of the 2010 World Cup. Uruguay faced Ghana. Deep into extra time the two teams were drawing one all. The Ghanaian striker Dominic Adiyiah headed the ball towards the net with a shot that was unstoppable by any legal means. Suàrez used his hands. He broke the rules to save the ball, but he did not forfeit the game: his team were not disqualified. There were instead two lesser punishments for his misdemeanour. Suàrez was sent off and Ghana were awarded with a penalty. Asamoah Gyan failed to convert it, however. Consequently, Suàrez’s ‘cheating’ was worthwhile. Uruguay made it through to the next round.

            What can we take from all of this? Firstly, winning in politics is achieved, not by breaking the rules, but instead by hiding them. Neo-liberalism is triumphant because it is made to look like common sense. It disguises its ideological agenda. Blair's intervention this week was a rare example of the system exposing its ugly head. The rules of football, in contrast, are transparent. Disobeying them does not have the same consequences as testing positive for anabolic steroids in a 100 metres sprint. It can, instead, reap benefits.

            This is supposed to be a blog about popular music, but I’m not sure what pop can learn from either politics or football when it comes to obeying, breaking or changing the rules. What I do know, however, is that popular music would now be best served by a Suàrez-type figure. Please spare us from a Tony Blair. 

Love of Labour

These days people hark back to the mixtapes and describe the creation of them as a labour of love. In doing so they emphasise the wrong part of this practice. There has been a large body of writing about the romantic aspects of creating these tapes; compiling them as love letters to the person you wanted to date. In my own experience romance was only a small part of mix-taping practice. Sadly, perhaps, I was more likely to make mixtapes for my mates (what does this say about my sexuality?). Most often I made them for myself (admittedly, I did have a fairly isolated upbringing).

            And I made a lot of mixtapes. In fact, just about every vinyl record I bought, as well as any pre-recorded cassettes or CDs, was reconfigured and re-contextualised as part of a tape compilation. This didn’t represent a labour of love, but rather a love of labour.

            There is a type of listening practice that is idealised above all others: dedicated, motionless listening, preferably through headphones and better still in the dark. This is the pop equivalent of the classical music concert: listening that supresses bodily activity. As with so many aspects of classical ideology this needs to be countered. Simon Frith has made a strong argument for dancing as an ideal way of listening. This is a political move. He wants to overturn the idea that rhythmically-focused black music should be reduced to ‘feeling’ while harmonically-sophisticated white music is the bastion of ‘thought’. He argues instead that ‘dance matters not just as a way of expressing music but as a way of listening to it, a way into the music in its unfolding – which is why dancing to music is both a way of losing oneself in it, physically, and a way of thinking about it, hearing it with a degree of concentration that is clearly not “brainless”’.

            In black culture there is a dynamic cluster of meanings around the word ‘work’. When you are ‘working’ you might be doing your job. The term is also applied to dancing and to dancing’s great correlate, sex. This metaphorical usage stretches from Hank Ballard’s ‘Work with Me, Annie’ through to Michael Jackson’s ‘Working Day and Night’ and beyond.

            Returning to the subject of mixtapes, I want to raise a less titillating equation between working and absorbing yourself in sound. Another great way of listening to music is to turn it into a job. For me, the making of mixtapes wasn’t romantic; it was an industrial process. In my own vainglorious way I was imagining myself as a producer or engineer. I was selecting, sequencing and editing. Like dancing, this changed listening from a passive process into an active one. It was also a way of getting closer to the music. I have written before about the reciprocal relationship between recording personnel and the public: producers mix recordings with an imagined ‘ear’ of the public; one of the ways that the public listens to music is by imagining the scenario in the recording studio. There are all sorts of ways of miming along to the records we play and there various locations that we can picture ourselves in – the air guitar and the live concert are not the only games in town. In fact, one of the best ways of locating ourselves in recorded sound is to configure ourselves as engineers. And this, as much as courtship, is where the mixtape came in handy.  

Just Like Watching Brazil

I have just returned from Campinas in Brazil, where I was attending the 18^th biennial conference of the International Association for the Study of Popular Music (IASPM). I heard some great papers there, covering a wide range of subjects (from Astrid Gliberto to Metallica, from modernism to the Musicians’ Union). I also gave my own paper, ‘Sounds Revolting’, which was drawn largely from my recent blog entries about big data and new music. I introduced it by asking the delegates if they knew the current number one single, either in the UK, the US or Brazil. The fact that I didn’t receive a single correct reply confirmed my thesis and is a reflection of the lack of centrality that the charts play in people’s lives. Or is it just indicative of IASPM? One of the curious things about the international association of popular music is that it doesn't pay much attention to the most popular popular music. I attended plenty of talks, but none of the papers addressed music that is currently in the charts.

            While I was at the conference I met with Olivier Julien, who lectures in music at the Sorbonne. He has recently written a great review of my book in the French journal Volume, in which he describes its structure as a ‘truly brilliant idea’. He sums up:

Given this clever and engaging formal scheme, and considering it helps organize an argument that is particularly well researched and documented while providing an overall pleasant and stimulating reading experience, I believe Osborne’s book to be one of the best recent contributions to what Amanda Bayley described, back in 2009, as “the increasingly diverse research currently being undertaken in the field of recorded music” (2009: 2). For these reasons, I am certain Vinyl: A History of the Analogue Record will soon feature prominently on many bookshelves, alongside such classics as Andre Millard’s America on Record (1995) or Mark Katz’s Capturing Sound (2004).